Opinion
22-CV-7441 (NSR)
11-02-2022
STEVEN JUDE, Plaintiff, v. NEW YORK STATE OFFICE OF MENTAL HEALTH (“OMH”), et al., Defendants.
ORDER OF SERVICE
NELSON S. ROMAN UNITED STATES DISTRICT JUDGE
Plaintiff, who is currently incarcerated at Five Points Correctional Facility, brings this pro se action under 42 U.S.C. § 1983; the Americans with Disabilities Act of 1990, 42 USC § 12112 et seq; the Rehabilitation Act of 1973, 29 U.S.C. § 794; and the Humane Alternatives to Long-Term Solitary Confinement Act, N.Y. Correct. Law § 137. Plaintiff asserts that while confined at Sullivan Correction Facility, he was subjected to unconstitutional conditions of confinement, and was discriminated against because of his sensorial, physical, and mental disabilities. By order dated September 14, 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).
DISCUSSION
A. Service on the Identified Defendants
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 a summons be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served summonses and the 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 summonses are issued.
To allow Plaintiff to effect service on Defendants New York State Office of Mental Health; New York State Department of Corrections and Community Supervision (“DOCCS”); Ann Marie Sullivan; Danielle Dill; Gregory Savage; Anthony J. Annucci; Bryant Hilton; Jeff McKoy; Stacie Bennett; Wayne Jordan; and the Medical Director of DOCCS 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 each defendant. 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 each defendants.
If the complaint is not served within 90 days after the date the summonses are issued, 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).
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 Defendant
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 complaint, Plaintiff supplies sufficient information to permit DOCCS to fully identify Defendant Morrow, a Commissioner or Hearing Officer whom Plaintiff seeks to sue. It is therefore ordered that the New York State Attorney General, who is the attorney for and agent of DOCCS, must ascertain the identity of Morrow and the address where this defendant may be served. The New York State Attorney General 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 an amended complaint providing the full name and service address of Morrow. 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 the amended complaint and, if necessary, issue an order directing the Clerk of Court to complete the USM-285 form with the address for the newly named defendant and deliver all documents necessary to effect service to the U.S. Marshals Service.
CONCLUSION
The Clerk of Court is instructed to issue summonses for Defendants New York State Office of Mental Health; New York State Department of Corrections and Community Supervision; Ann Marie Sullivan; Danielle Dill; Gregory Savage; Anthony J. Annucci; Bryant Hilton; Jeff McKoy; Stacie Bennett; Wayne Jordan; and the Medical Director of DOCCS, complete the USM-285 forms with the addresses for these defendants, and deliver to the U.S. Marshals Service all documents necessary to effect service.
The Clerk of Court is directed to mail a copy of this order and the complaint to the New York State Attorney General at: 28 Liberty Street, New York, New York 10005. An amended complaint form is attached to this order.
The Clerk of Court is also directed to mail an information package and copy of this Order to Plaintiff.
SO ORDERED.