Opinion
20-CV-6427 (CS)
06-11-2021
MARCUS COSSETTE, Plaintiff, v. DOWNSTATE CORRECTIONAL FACILITY, et al., Defendants.
ORDER OF SERVICE
CATHY SEIBEL, United States District Judge:
Plaintiff, currently incarcerated at Auburn Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his rights while he was incarcerated at Downstate Correctional Facility. By order dated November 25, 2020, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (IFP).
Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1).
Plaintiff's Third Amended Complaint, (Doc. 43), names as a Defendant Lamont Williams, who has not previously been served. Because Plaintiff has been granted permission to proceed IFP, he is entitled to rely on the Court and the U.S. Marshals Service to effect service. Walker v. Schult, 717 F.3d. 119, 123 n.6 (2d Cir. 2013); see also 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process . . . in [IFP] cases.”); Fed.R.Civ.P. 4(c)(3) (the court must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP)). Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that the summons and complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served the summonses and complaint until the Court reviewed the complaint and ordered that summonses be issued. The Court therefore extends the time to serve until 90 days after the date the summons to Defendant Williams is issued. If the complaint is not served within that time, Plaintiff should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that it is the plaintiff's responsibility to request an extension of time for service); see also Murray v. Pataki, 378 Fed.Appx. 50, 52 (2d Cir. 2010) (“As long as the [plaintiff proceeding IFP] provides the information necessary to identify the defendant, the Marshals' failure to effect service automatically constitutes ‘good cause' for an extension of time within the meaning of Rule 4(m).”).
To allow Plaintiff to effect service on Defendant Lamont Williams through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals Service Process Receipt and Return form (“USM-285 form”) for that Defendant. The Clerk of Court is further instructed to issue a summons for that Defendant and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon that Defendants.
All Defendants' time to respond to the Third Amended Complaint is extended to the date by which Defendant Williams' response is due.
Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket.
The Clerk of Court is further instructed to issue a summons and complete the USM-285 forms with the addresses for Correction Officer Lamont Willaims and deliver all documents necessary to effect service on that Defendants to the U.S. Marshals Service.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.