Candelaria v. Erickson

Full title: Juan Candelaria, Plaintiff, v. ERICKSON, Individually and in his capacity…

Court: United States District Court, S.D. New York

Date published: Mar 5, 2002

No. 01 Civ.8594 (LTS) (RLE) (S.D.N.Y. Mar. 5, 2002)

Opinion

No. 01 Civ.8594 (LTS) (RLE)

March 5, 2002

ORDER

LAURA TAYLOR SWAIN, United States District Judge.

This action was transferred to this Court from the Western District of New York on September 24, 2001. Plaintiff, an inmate, is proceeding pro se. Pursuant to Federal Rule of Civil Procedure 4(m), a plaintiff has within 120 days after the filing of the complaint to effect service upon defendants or face dismissal, without prejudice, of the action as to those defendants not yet served.

The Court issued a Preliminary Pre-Trial Order, dated March 5, 2002, scheduling an initial pre-trial conference for May 9, 2002, at 10:00 a.m. and directing the U.S. Marshals to serve a copy of the Pretrial Order with the Summons and Complaint on each defendant within ten days of the date thereof if the summons and complaint has not yet been served.

It appears that service of the summons and second amended complaint upon defendant Erickson was returned unexecuted on or about December 7, 2001.

In view of Valentin v. Dinkins, 121 F.3d 72, 1997 WL 436715 (2d Cir. 1997) (per curiam), a pro se litigant is entitled to assistance from the district court in identifying a defendant.

The Court hereby requests the office of the New York State Attorney General to attempt to ascertain the most recent address of defendant Erickson or to seek to obtain authority to accept service of process on his behalf.

The New York State Attorney General is requested to report to the plaintiff and the Court on whether defendant Erickson can be located and, if so, whether he has been authorized to accept service on defendant Erickson's behalf, not later than April 4, 2002.

In view of the foregoing, the plaintiff's time to effect service of the Second Amended Complaint is extended to June 7, 2002.

In the event that the defendant Erickson cannot be located, or if located, is not served by June 7, 2002, the Court may dismiss the action.

Any questions concerning prosecuting an action as a pro se litigant should be directed by telephone to (212) 805-0175 or by mail to the Pro Se Office, United States District Court, Southern District of New York, 500 Pearl Street, Rm. 230, New York, New York 10007.

The Clerk is directed to send copies of this order to the plaintiff and to the Office of the Attorney General of the State of New York.