Opinion
7:18-cv-2576-NSR
10-04-2022
TASHAY DAVID DEANS, Plaintiff, v. SGT. CIMORELLI, et al., Defendants.
SUPPLEMENTAL ORDER OF SERVICE
HON. NELSON S. ROMAN UNITED STATES DISTRICT JUDGE
Plaintiff brings this pro se action, alleging that Defendants denied him medical attention at the Orange County Jail. (ECF No. 2.) The Court issued an Order of Service and Valentin Order on June 25, 2018 (ECF No. 7.) On October 22, 2018, Plaintiff filed an amended complaint. (ECF No. 12.) Plaintiff filed a request to have the U.S. Marshals Service effect service, a Valentin Order, and proposed order to show cause (ECF Nos. 25, 26, 27). The Court denied those requests without prejudice, and directed Plaintiff to submit an application for in forma pauperis status, and granted leave to file a Second Amended Complaint (“SAC”). (ECF No. 28.)
Plaintiff filed an in forma pauperis application and a SAC on July 20, 2022 (ECF Nos. 33, 34.) The Court granted Plaintiff's in forma pauperis application on October 4, 2022, and therefore is deemed to have paid the filing fee.
A. Issuance of Summons
The Clerk of the Court is directed to issue a summonses as to newly named Defendants Orange County New York, Steven M. Newhaus, Karin Hablow, Sheriff Carl E. DeBois (collectively, “Defendants”). Plaintiff is directed to serve the summonses and SAC within 90 days of the issuance of the summonses. If within those 90 days, Plaintiff has not either served Defendants or requested an extension of time to do so, the Court may dismiss the claims against these Defendants under Rules 4 and 41 of the Federal Rules of Civil Procedure for failure to prosecute.
Plaintiff has filed claims against Orange County pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978), as suggested by this Court in its April 21, 2022 order. (ECF No. 28.)
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)). To allow Plaintiff to effect service on Defendants 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 the Defendants. The Clerk of Court is further instructed to issue a summons and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon the Defendants.
B. Valentin Order
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). In the SAC, Plaintiff supplies sufficient information to permit the Orange County Law Department to identify the nurses and doctors who treated Plaintiff's eye conditions at the Orange County Correctional Facility from November 2017 through February 2018. It is therefore ordered that the Law Department, which is the attorney for an agent of the Orange County Department of Correction, must ascertain the identity and badge number of each John Doe whom Plaintiff seeks to sue here and the address where the defendant may be served. The Law Department must provide this information to Plaintiff and the Court within sixty days of the date of this order.
Within thirty days of receiving this information, Plaintiff must file a Third Amended Complaint naming the John Doe Defendants. The Third Amended Complaint will replace, not supplement, the Second Amended Complaint. A Third Amended Complaint form that Plaintiff should complete is attached to this order. The Court will screen the Third Amended Complaint once it is filed by Plaintiff.
CONCLUSION
The Clerk of the Court is directed to mail a copy of this supplemental order to Plaintiff.
The Clerk of the Court is directed to mail a copy of this order and SAC to the Orange County Law Department at: 255-275 Main Street, Goshen, NY 10924.
The Clerk of the Court is directed to issue summonses as to Defendants (as defined above).
The Court certifies under 18 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis 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.