Opinion
20-CV-5793 (JPO)
10-05-2020
JERYLAN MARQUEZ-ORTIZ, Plaintiff, v. JOHN/JANE DOE, Defendant.
ORDER OF SERVICE :
Plaintiff, currently detained at the Metropolitan Detention Center, brings this pro se action, alleging that he was injured while detained at the Metropolitan Correctional Center. The Court construes the complaint as arising under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680. By order dated September 14, 2020, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis.
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
A. Rule 21 of the Federal Rules of Civil Procedure
Under Rule 21 of the Federal Rules of Civil Procedure, the Court, on its own motion, "may at any time, on just terms, add or drop a party." Fed. R. Civ. P. 21; see Anwar v. Fairfield Greenwich, Ltd., 118 F. Supp. 3d 591, 618-19 (S.D.N.Y. 2015) (Rule 21 "afford[s] courts discretion to shape litigation in the interests of efficiency and justice.").
The proper defendant in an FTCA action is the United States. 28 U.S.C. § 2674; Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994). In light of Plaintiff's pro se status and clear intention to name the United States as a defendant, the Court directs the Clerk of Court, under Fed. R. Civ. P. 21, to substitute as the defendant the United States of America for "John/Jane Doe."
B. Order of Service
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 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 the United States 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") as to the United States. The Clerk of Court is also instructed to mark the box on the USM-285 form labeled "Check for service on U.S.A." The Clerk of Court is further instructed to issue a summons for the United States of America and deliver to the Marshals Service all of the paperwork necessary for the Marshals Service to effect service on this defendant. Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss this 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, under Fed. R. Civ. P. 21, is directed to substitute as the defendant the United States of America for "John/Jane Doe."
The Clerk of Court is further instructed to complete the USM-285 forms with the addresses for United States of America and deliver all documents necessary to effect service to the U.S. Marshals Service. SO ORDERED. Dated: October 5, 2020
New York, New York
/s/_________
J. PAUL OETKEN
United States District Judge
DEFENDANTS AND SERVICE ADDRESSES
United States Attorney General, Southern District of New York
Civil Division
86 Chambers Street, Third Floor
New York, New York 10007
Attorney General of the United States
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-2000