Opinion
20-CV-3847 (JMF)
11-05-2020
DUWAYNE L. TERRY, Plaintiff, v. TINA STAMFORD, Parole Board Chairman, in her individual and official capacity, et al. Defendants.
ORDER OF SERVICE
:
Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). Accordingly, on October 30, 2020, the Court ordered the New York Attorney General's Office to identify Defendant Crangle and the address where he may. See ECF No. 24. On November 5, 2020, the Attorney General's Office responded in a letter providing Crangle's service address. ECF No. 30.
Because Plaintiff has been granted permission to proceed in forma pauperis, he is entitled to rely on the Court and the U.S. Marshals Service to effect service. See Walker v. Schult, 717 F.3d. 119, 123 (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 summonses and the complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served summonses and the complaint on the defendants 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 summonses are issued. If the amended 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) (summary order) ("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 Crangle 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 him. The Clerk of Court is further instructed to issue summonses and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon Defendant Crangle.
Defendants are reminded that as required by N.Y.C.P.L.R. § 312-a, the acknowledgment form mailed by USMS states that to "avoid being charged with the expense of service" of the summons and complaint, the recipient has to complete and sign the form and return it to the Marshals within 30 days from the date of receipt and that if they do not do so, the costs of service may "be entered as a judgment against" them.
Defendants are directed to promptly serve a copy of this order on Plaintiff and to file proof of such service on the docket.
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. 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: November 5, 2020
New York, New York
/s/_________
JESSE M. FURMAN
United States District Judge
DEFENDANT AND SERVICE ADDRESS
Parole Board Commissioner Joseph Crangle
Board of Parole
Harriman State Campus
Building #2
1220 Washington Avenue
Albany 12226-205