Opinion
22-CV-628 (KMK)
04-06-2022
RODNEY COWARD, Plaintiff, v. JOHN OR JANE DOE, M.D. and SUPERINTENDENT ROBERT MORTON, JR., Defendants.
ORDER OF SERVICE
KENNETH M. KARAS, United States District Judge:
Plaintiff, who is currently incarcerated at Bare Hill Correctional Facility, brings this pro se action alleging that Defendants violated his constitutional rights. Plaintiff's claims are construed as being brought under 42 U.S.C. § 1983 and state law. By order dated March 31, 2022, the Court granted Plaintiff's request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.
Prisoners are not exempt from paying the full filing fee, even when they have been granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1).
The Court directs service on Superintendent Robert Morton, Jr., and directs the Attorney General of the State of New York to provide to Plaintiff and the Court the identity and service address of the “John or Jane Doe, M.D.” defendant.
I. Discussion
A. Service on Superintendent Morton
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 Fed.Appx. 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 Superintendent Morton 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 this defendant. The Clerk of Court is further instructed to issue a summons for the Superintendent and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon Superintendent Morton.
Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so.
B. Unidentified “John or Jane Doe, M.D.” Defendant
Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying an unidentified defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the complaint, Plaintiff supplies sufficient information to permit the New York State Department of Corrections and Community Supervision (“DOCCS”) to identify the unidentified “John or Jane Doe, M.D.” defendant. The “John or Jane Doe, M.D.” defendant is the doctor who conducted a medical screening and physical examination of Plaintiff upon his entry into the Downstate Correctional Facility in December 2019. The Court therefore orders the Attorney General of the State of New York, who is the attorney for and agent of DOCCS, to ascertain the identity of the “John or Jane Doe” defendant whom Plaintiff seeks to sue here, and the address where that defendant may be served. The Attorney General must provide this information to Plaintiff and the Court within 60 days of the date of this order.
Within 30 days of receiving this information, Plaintiff must file an amended complaint naming the newly identified defendant. The amended complaint will replace, not supplement, the original complaint. An amended complaint form that Plaintiff should complete is attached to this order. Once Plaintiff has filed an amended complaint, the Court will screen it and, if necessary, issue an order directing the Clerk of Court to complete the USM-285 forms with the address for the newly identified defendant and deliver all documents necessary to effect service to the U.S. Marshals Service.
II. Conclusion
The Clerk of Court is instructed to issue a summons as to the Superintendent of Downstate Correctional Facility, complete the USM-285 forms with the address for that defendant, and deliver all documents necessary to effect service to the U.S. Marshals Service.
The Clerk of Court is also directed to mail a copy of this order and the complaint to the Attorney General of the State of New York at: 28 Liberty Street, New York, NY 10005.
Finally, the Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package. An amended complaint form is attached to this order.
SO ORDERED.