Opinion
20-CV-4490 (CS)
06-12-2020
FREDDY PINTO GUTIERREZ, Plaintiff, v. R. RAPPA; DAN GARCIA; C.O. J. ROJAS; MARY ASHONG, Defendants.
ORDER OF SERVICE :
Plaintiff, currently incarcerated at Green Haven Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, asserting claims for deliberate indifference to a serious risk of harm to him. He also asserts claims arising under state law. By order dated June 12, 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 in forma pauperis. See 28 U.S.C. § 1915(b)(1).
DISCUSSION
Because Plaintiff has been granted permission to proceed IFP, Plaintiff 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 summons and complaint until the Court reviewed the complaint and ordered that a summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons 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 F. App'x 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 Defendants Mary Ashong, Dan Garcia, R. Rappa, J. Rojas, all at Green Have Correctional Facility, 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 each of these defendants. The Clerk of Court is further instructed to issue a summons and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon these defendants.
Plaintiff must notify the Court in writing if Plaintiff's 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, together with an information package.
The Clerk of Court is further instructed to complete the USM-285 forms with the addresses for Defendants Mary Ashong, Dan Garcia, R. Rappa, and Correction Officer J. Rojas and deliver to the U.S. Marshals Service all documents necessary to effect 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 in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). SO ORDERED. Dated: June 12, 2020
White Plains, New York
/s/_________
CATHY SEIBEL
United States District Judge
DEFENDANTS AND SERVICE ADDRESSES
1. R. Rappa
Green Haven Correctional Facility
P.O. Box 4000
Stormville, NY 12582-4000
2. Dan Garcia
Green Haven Correctional Facility
P.O. Box 4000
Stormville, NY 12582-4000
3. C.O. J. Rojas
Green Haven Correctional Facility
P.O. Box 4000
Stormville, NY 12582-4000
4. Mary Ashong, Medical Personnel
Green Haven Correctional Facility
P.O. Box 4000
Stormville, NY 12582-4000