Opinion
21-CV-3503 (NSR)
06-30-2021
ERIC WYNN, Plaintiff, v. DAVID SANDERS; TUCKER ALBIN &ASSOCIATES; ALLEN HUMPHRIES, Defendants.
David Sanders, Tucker Albin and Associates Tucker Albin and Associates
David Sanders, Tucker Albin and Associates
Tucker Albin and Associates
ORDER OF SERVICE
NELSON S. ROMAN, United States District Judge
Plaintiff, appearing pro se, brings this action under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692. By order dated April 26, 2021, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis. (IFP)
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or portion thereof, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest, ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).
DISCUSSION
A. Allen Humphries
Plaintiff names Allen Humphries as a defendant in the caption of the complaint, but the body of the complaint does not contain allegations against him. See Iwachiw v. New York State Dep' t of Motor Vehicles, 299 F.Supp.2d 117, 121 (E.D.N.Y. 2004) (“ [W]here the complaint names a defendant in the caption but contains no allegations indicating exactly how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted”) (citations omitted)), aff'd, 396 F.3d 525 (2d Cir. 2005).
The Court dismisses the claims against Humphries without prejudice. If Plaintiff wishes to assert claims against Humphries, he may file a second amended complaint and assert facts showing his involvement in what occurred on or before August 6, 2021. A blank amended complaint form is attached. Plaintiff is further advised that if he amends his complaint, the new amended complaint will become the operative document. In other words, if he were to file an amended complaint that only added new allegations against Humphries, it would be a bad idea as those would be the only allegations in the record before the Court. Instead, he should include all allegations that merit inclusion in the complaint in order to clearly and legibly state his claims.
In the event that Plaintiff does not amend his complaint on or before August 6, 2021, or seek an extension to his pleading deadline, the Court may dismiss claims against Allen Humphries with prejudice.
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 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 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 summonses are 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 Defendants David Sanders and Tucker Albin and Associates 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 summonses and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon the defendants.
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 claims against Allen Humphries are dismissed with leave to replead. 28 U.S.C. § 1915(e)(2)(B)(ii). The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package and to show proof of service on the docket. The Clerk of Court is further instructed to complete the USM-285 forms with the addresses for David Sanders and Tucker Albin and Associates and deliver to the U.S. Marshals Service all documents necessary to effect service.
SO ORDERED.