Opinion
21-CV-3719 (VB)
11-10-2021
EDWIN MALDONADO, Plaintiff, v. OFFICER JOHN FIRST NAME UNKNOWN GUNSETT, et al, Defendants.
ORDER OF SERVICE
VINCENT L. BRICCETTI, United States District Judge.
Plaintiff, who is currently incarcerated in Attica Correctional Facility, brings this action under 42 U.S.C. § 1983, alleging that Defendants subjected him to sexual assaults, excessive force, and retaliation while he was confined at Green Haven Correctional Facility (Green Haven) in 2005 and 2018. By order dated June 21, 2021, the Court granted Plaintiffs request to proceed without prepayment of fees, that is, in forma pauperis (IFP).
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 Named Defendants
Because Plaintiff has been granted permission to proceed IFP, Plaintiff is entitled to rely on the Court and the U.S. Marshals Service to effect service. Walker v. Schult, l\l 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 summonses and the complaint be served within 1 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served summonses and the amended complaint until the Court reviewed the amended complaint and ordered that summonses be issued. The Court therefore extends the time to serve until 90 days after the date summonses are issued. If the amended 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 Fed.Appx. 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 on Defendants Correction Officer Gunsett, Sergeant Rowe, Correction Officer Miller, Sergeant Maligen, and Deputy Danielle Medbury 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 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.
B. Identification of the John and Jane Doe Defendant
Under Valentin v. Dinkins, apro 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 the Attorney General of the State of New York to identify the John and Jane Doe correction officers at Green Haven who were involved in the alleged 2 incidents Plaintiff describes. It is therefore ordered that the Attorney General, who is the attorney for and agent of the NYSDOCS, must ascertain the identities of the following correction officers at Green Haven whom Plaintiff seeks to sue and the addresses where these defendants may be served: (1) John Doe Deputy of Security in 2005; (2) John Doe H-Block Officer # 1 in 2005; (3) John Doe H-Block Officer # 2 in 2005; (4) John Doe H-Block Officer # 3 in 2005; (5) John Doe H-Block Sergeant on February 1, 2005; (6) John Doe SHU Officer # 1 in 2005; (7) John Doe Sergeant in 2005; (8) Jane Doe J-Block Officer in 2018; (9) John Doe Disciplinary Office Lieutenant in 2018; (10) Jane Doe Disciplinary Office Officer on June 18, 2018; (11) John Doe Deputy of Security in 2018; (12) John Doe A-Block Escort Officer in 2018; and (13) John Doe G-Block Escort Officer in 2018. The Attorney General must provide this information to Plaintiff and the Court by January 10, 2022.
Within thirty days of receiving this information, Plaintiff must file a second amended complaint with the full names of the John and Jane Doe defendants. The second amended complaint will replace, not supplement, the original complaint. A second amended complaint form that Plaintiff should complete is attached to this order. Once Plaintiff has filed a second amended complaint, the Court will screen the second amended complaint and, if necessary, issue an order directing the Clerk of Court to issue summonses, complete the USM-285 forms with the addresses for the named defendants, and deliver to the U.S. Marshals Service all documents necessary to effect service.
C. Local Civil Rule 33.2
Local Civil Rule 33.2, which requires defendants in certain types of prisoner cases to respond to specific, court-ordered discovery requests, applies to this action. Those discovery requests are available on the Court's website under "Forms" and are titled "Plaintiff's Local Civil 3 Rule 33.2 Interrogatories and Requests for Production of Documents." Within 120 days of service of the complaint, Defendants must serve responses to these standard discovery requests. In the responses, Defendants must quote each request verbatim.
If Plaintiff would like copies of these discovery requests before receiving the responses and does not have access to the website, Plaintiff may request them from the Pro Se Intake Unit.
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 also directed to issue summonses, complete the USM-285 forms with the addresses for Correction Officer Gunsett, Sergeant Rowe, Correction Officer Miller, Sergeant Maligen, and Deputy Danielle Medbury, and deliver to the U.S. Marshals Service all documents necessary to effect service.
The Clerk of Court is further instructed to mail a copy of this order and the amended complaint to the Attorney General of the State of New York at: 28 Liberty Street, New York, NY 10005. A "Second Amended Complaint" form is attached to this order.
Local Civil Rule 33.2 applies to this action.
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.
(Exhibit Omitted) 4