Opinion
08 Civ. 1128 (RJH) (KNF).
July 1, 2010
MEMORANDUM and ORDER
On May 14, 2010, the Court ordered the plaintiff to file his Third Amended Complaint ("TAC"), and proof of service thereof, on or before June 4, 2010. Though the plaintiff filed his TAC on May 25, 2010, as of the date of this order, no proof of service upon any defendant has been filed with the Clerk of Court.
Fed.R.Civ.P. 4(m) provides that a defendant must be served within 120 days of the filing of a complaint, absent the district court granting the plaintiff an extension of time, upon a showing of good cause. "[F]iling an amended complaint in itself does not toll the service period, thereby providing an additional 120 days for service[.]" 4B Charles A. Wright Arthur R. Miller, FED. PRAC. PROC. CIV. § 1137 (3d ed.); see Cioce v. County of Westchester, No. 02 Civ. 3604, 2003 WL 21750052, at *3 (S.D.N.Y. July 28, 2003) (noting that the 120-day service period commences from "the institution of the lawsuit" rather than the filing of an amended complaint). However, "adding a new party through an amended complaint initiates a new 120-day timetable for service upon the added defendant." 4B Charles A. Wright Arthur R. Miller, FED. PRAC. PROC. CIV. § 1137 (3d ed.).
The plaintiff's TAC adds Superintendent Rocco Pozzi ("Pozzi") as a defendant and identifies the John and Jane Doe defendants, respectively, as "PA-Norris Nosworthy" and "NP-Maria Taylor." As to these defendants, the plaintiff is entitled to 120 days to effect service of the summons and TAC. Three other defendants in the TAC — Westchester County Medical Center, Westchester County Department of Corrections and Dr. McGill — were named previously, in the Second Amended Complaint, filed on November 23, 2009. As to these defendants, the plaintiff has failed to effect service within the time allotted by the Federal Rules of Civil Procedure and, later, by the Court, in its May 14, 2010 order. In the interest of judicial economy, and given the general preference for deciding cases on the merits, the Court will provide the plaintiff one final opportunity to serve all defendants named in the TAC.
Though the plaintiff has added Pozzi as a defendant, by listing him in the caption of the TAC, there are no allegations against him in the complaint. The plaintiff is reminded that "'personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [42 U.S.C.] § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 [2d Cir. 1991]).
Accordingly, IT IS HEREBY ORDERED that the plaintiff serve the summons and TAC on all defendants, on or before September 22, 2010. Should the plaintiff fail to effect service by that date, a report and recommendation will be made, to the assigned United States district judge, that his TAC be dismissed, with prejudice, as to any unserved defendant. See Fed.R.Civ.P. 4(m), 41(b).
The plaintiff is directed to contact the Pro Se Office for this judicial district, which is located at 500 Pearl Street, Room 230, New York, New York 10007, telephone number (212) 805-0175, for any procedural assistance he may require.
SO ORDERED: