Opinion
19 CV 10870 (VB)
03-03-2020
WALTER J. JACKSON, Plaintiff, v. ALVARO FARIAS, Detective, Shield #103; and CITY OF PEEKSKILL, Defendants.
ORDER OF SERVICE :
Plaintiff, appearing pro se, brings this action under 42 U.S.C. § 1983, alleging that Defendants violated his federal constitutional rights. By order dated December 12, 2019, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis ("IFP"). The Court directs service on Defendants.
By order dated January 10, 2020, Chief Judge McMahon directed Plaintiff to submit an amended complaint, ECF No. 5, which he did on February 24, 2020, ECF No. 7.
DISCUSSION
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 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 summonses and complaint until the Court reviewed the complaint and ordered that summonses be issued. The Court therefore extends the time to serve until 90 days after the date the 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 F. App'x 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 through the U.S. Marshals Service on Defendants Peekskill Detective Alvaro Farias, Shield #103, and the City of Peekskill, 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 these 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 Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package.
The Clerk of Court is further instructed to issues summonses, complete the USM-285 forms with the addresses for Peekskill Detective Alvaro Farias, Shield #103, and the City of Peekskill, and deliver to the U.S. Marshals Service all documents necessary to effect service.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP 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. Dated: March 3, 2020
White Plains, New York
/s/_________
VINCENT L. BRICCETTI
United States District Judge
DEFENDANTS AND SERVICE ADDRESSES
1. Detective Alvaro Farias, Shield #103
City of Peekskill Police Department
2 Nelson Avenue
Peekskill, NY 10566
2. City of Peekskill
Corporation Counsel
Peekskill City Hall
840 Main Street
Peekskill, NY 10566