Opinion
7:22-CV-7922 (CS)
10-17-2022
ANDREW R. MULLINGS, Plaintiff, v. EDWARD BURNETT, Superintendent, Fishkill Correctional Facility; MICHAEL DAYE, First Dep. Superintendent, Fishkill Correctional Facility; C. CHURNS, Captain, Fishkill Correctional Facility; JOSEPH NOETH, Dep. Comm. Facility Operations, N.Y.D.O.C.S. & C.S.; DARREN MILLER, Chief Investigator N.Y.D.O.C.S. & C.S. OSI; C.E.R.T. Officer, ID# 17-28; S. THOMPSON, Correctional Officer, Fishkill Correctional Facility; M. PIERRE, RN, Fishkill Correctional Facility, Medical Unit; GAETAN ZAMILUS, MD, Fishkill Correctional Facility, Medical Unit; JOHN DOE C.E.R.T. OFFICERS, #'s 1-40 that searched Housing Unit 10-2, Defendants.
ORDER OF SERVICE
CATHY SEIBEL, United States District Judge:
Plaintiff Andrew R. Mullings, who is currently held in immigration detention in the Buffalo Federal Detention Facility, in Batavia, New York, brings this pro se action under 42 U.S.C. § 1983, seeking declaratory relief and damages. He sues the following defendants: (1) Edward Burnett, the Fishkill Superintendent; (2) Michael Daye, the First Deputy Fishkill Superintendent; (3) C. Churns, a Fishkill Correctional Captain; (4) Joseph Noeth, the New York State Department of Corrections and Community Supervision's (“DOCCS”) Deputy Commissioner of Facility Operations; (5) Darren Miller, Chief Investigator of DOCCS's Office of Special Investigations; (6) Fishkill Correctional Emergency Response Team (“CERT”) Officer “ID #17-28” (“CERT 17-28”); (7) S. Thompson, a Fishkill Correctional Officer and CERT Officer; (8) M. Pierre, RN, a Fishkill nurse; (9) Gaetan Zamilus, MD, a Fishkill physician; and (10) unidentified “John Doe” CERT Officers “#'s 1-40 that searched Housing Unit 10-2.”
Plaintiff filed his complaint while he was incarcerated in the Fishkill Correctional Facility (“Fishkill”).
By order dated September 16, 2022, the Court granted Plaintiff's request to proceed in forma pauperis (“IFF”), that is, without prepayment of fees. The Court directs service on the identified defendants, directs the identified defendants to comply with Local Civil Rule 33.2, and directs the Attorney General of the State of New York to provide to Plaintiff and the Court the identities, service addresses, and, if appropriate, badge numbers of the unidentified defendants.
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). Because Plaintiff is no longer incarcerated, and is in civil immigration detention, however, he is no longer obligated to pay the filing fee to bring this action. See McGann v. Comm'r of Soc. Sec., 96 F.3d 28, 30 (2d Cir. 1996).
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 the identified defendants 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 the identified 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 the identified defendants.
If the complaint is not served on the identified defendants 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 this action if Plaintiff fails to do so.
B. 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. These discovery requests are available on the Court's website under “Forms” and are titled “Plaintiff's Local Civil Rule 33.2 Interrogatories and Requests for Production of Documents.” Within 120 days of service of the complaint, the identified defendants must serve responses to these standard discoveiy requests. In their responses, the identified 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 court's Pro Se Intake Unit.
C. Unidentified defendants
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 DOCCS to identify the unidentified defendants. It is therefore ordered that the Attorney General of the State of New York, who is the attorney for and agent of DOCCS, ascertain the identities, service addresses, and, if appropriate, badge numbers of the unidentified defendants whom Plaintiff seeks to sue here. The unidentified defendants include those CERT Officers (including CERT 17-28) who, on or about December 29, 2021, escorted Plaintiff from his Fishkill cell to his housing unit's recreation room and to any room adjacent to that recreation room. The Attorney General 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 defendants. 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 service on the newly identified defendants and directing their compliance with Local Civil Rule 33.2.
CONCLUSION
The Court directs the Clerk of Court to mail an information package to Plaintiff.
The Court also directs the Clerk of Court to issue summonses for Defendants Burnett, Daye, Churns, Noeth, Miller, Thompson, Pierre, and Zamilus; complete the USM-285 forms with the addresses for these defendants; and deliver all documents necessary to effect service on these defendants to the U.S. Marshals Service.
The Court further directs the Clerk of Court to mail a copy of this order and the complaint to the Attorney General of the State of New York at: 28 Liberty Street, 16th Floor, New York, New York 10005.
An amended complaint form is attached to this order.
SO ORDERED.