Opinion
1:21-CV-10364 (AT)
12-16-2021
ARLENE JENKINS, Plaintiff, v. NYCHA, Defendant.
ORDER OF SERVICE
ANALISA TORRES UNITED STATES DISTRICT JUDGE
Plaintiff, who appears pro se, brings this action in which she sues the New York City Housing Authority (“NYCHA”) arising from NYCHA's alleged failure to provide heat and hot water to Plaintiff's NYCHA apartment, and from at least one NYCHA employee's alleged entry into Plaintiff's apartment without Plaintiff's knowledge or consent. Plaintiff seeks unspecified relief. The Court construes Plaintiff's complaint as asserting claims under 42 U.S.C. § 1983 and state law. By order dated December 15, 2021, the court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”).
The Court directs service on NYCHA. For the reasons discussed below, the Court also directs the Clerk of Court to add as a defendant “John Doe” (a NYCHA employee who, in response to Plaintiff's complaint about a lack of heat in her NYCHA apartment on November 4, 2021, entered into Plaintiff's apartment while Plaintiff was not at home). The Court further directs counsel for NYCHA to provide to Plaintiff and the Court the identity and service address of “John Doe.”
DISCUSSION
A. Service on NYCHA
As Plaintiff has been granted permission to proceed IFP, she is entitled to rely on the Court and the U.S. Marshals Service to effect service. See 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 a summons and the complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served a summons and the complaint on NYCHA until the Court reviewed the complaint, and ordered that a summons be issued for NYCHA. The Court therefore extends the time to serve NYCHA until 90 days after the date that a summons is issued for NYCHA. If the complaint is not served on NYCHA 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 of the complaint on NYCHA 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 NYCHA. The Clerk of Court is further instructed to issue a summons for NYCHA, and deliver to the Marshals Service all of the paperwork necessary for the Marshals Service to effect service of the complaint on NYCHA.
Plaintiff must notify the Court in writing if her address changes, and the Court may dismiss this action if Plaintiff fails to do so.
B. Adding “John Doe” as a defendant
Under Rule 21 of the Federal Rules of Civil Procedure, the Court, on its own motion, “may at any time, on just terms, add or drop a party.” Fed.R.Civ.P. 21; see Anwar v. Fairfield Greenwich, Ltd., 118 F.Supp.3d 591, 618-19 (S.D.N.Y. 2015) (Rule 21 “afford[s] courts discretion to shape litigation in the interests of efficiency and justice.”). Under this rule, courts have added an individual as a defendant in an action, though that individual is not named as a defendant in the complaint, because he or she is mentioned “throughout the body of the [c]omplaint” as involved in the underlying alleged events. George v. Westchester Cnty. Dep't of Corr., No. 20-CV-1723, 2020 WL 1922691, at *2 (S.D.N.Y. Apr. 21, 2020); see Adams v. NYC Dep't of Corrs., No. 19-CV-5909, 2019 WL 2544249, at *2 (S.D.N.Y. June 20, 2019).
Plaintiff does not name as a defendant the NYCHA employee or employees who allegedly entered into her NYCHA apartment without her knowledge or consent. Plaintiff does allege, however, that in response to her complaint that on November 4, 2021, there was no heat in her apartment, a NYCHA representative informed the New York City Civil Court, Housing Part, that at least one NYCHA employee entered into Plaintiff's apartment while Plaintiff was not at home; Plaintiff alleges that the NYCHA employee(s) entered into her apartment without her consent. In light of Plaintiff's pro se status, the Court directs the Clerk of Court to add as a defendant to this action “John Doe” (an unidentified NYCHA employee who, in response to Plaintiff's complaint that there was no heat in her apartment on November 4, 2021, entered into Plaintiff's apartment while Plaintiff was not at home). See Fed.R.Civ.P. 21. This amendment to this action's caption is without prejudice to any defenses “John Doe” may wish to assert.
C. Identifying “John Doe”
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 NYCHA to identify “John Doe.” “John Doe” is a NYCHA employee who, in response to Plaintiff's complaint that on November 4, 2021, there was no heat in her NYCHA apartment, entered into Plaintiff's apartment while Plaintiff was not at home. The Court therefore orders counsel for NYCHA to ascertain the identity of “John Doe” and the address where that person may be served. Counsel for NYCHA 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 individual as a defendant. The amended complaint will replace, not supplement, Plaintiff's 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 the amended complaint and, if necessary, issue an order directing service on the newly identified defendant.
CONCLUSION
The Court directs the Clerk of Court to mail a copy of this order to Plaintiff, together with an information package.
The Court also directs the Clerk of Court to add as a defendant in this action “John Doe” (an unidentified NYCHA employee who, in response to Plaintiff's complaint that there was no heat in her NYCHA apartment on November 4, 2021, entered into Plaintiff's apartment while Plaintiff was not at home). See Fed.R.Civ.P. 21.
The Court further directs the Clerk of Court to: (1) issue a summons for NYCHA, (2) complete a USM-285 form with the service address for NYCHA, and (3) deliver all documents necessary to effect service of the complaint on NYCHA to the U.S. Marshals Service.
In addition, the Court directs the Clerk of Court to mail a copy of this order and a copy of the complaint to NYCHA at NYCHA's Law Department, 90 Church Street, 11th Floor, New York, New York 10007.
An amended complaint form is attached to this order.
SO ORDERED.
AMENDED OMITED