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Smith v. Lasanta

United States District Court, S.D. New York
Dec 1, 2021
21-CV-9509 (NSR) (S.D.N.Y. Dec. 1, 2021)

Opinion

21-CV-9509 (NSR)

12-01-2021

SINCERE SMITH, Plaintiff, v. C.O. R. LASANTA; C.O. JOHN DOE, Defendants.


ORDER OF SERVICE

NELSON S. ROMAN, UNITED STATES DISTRICT JUDGE

Plaintiff, who is currently incarcerated in the Mid-State Correctional Facility, brings this action under 42 U.S.C. § 1983, alleging that Defendants failed to protect him from being attacked by another inmate when Plaintiff was incarcerated in Sing Sing Correctional Facility. By order dated November 30, 2021, the Court granted Plaintiff's 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 Lasanta

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, 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 summons and complaint until the Court reviewed the complaint and ordered that a summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons is 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 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 Defendant Correction Officer R. Lasanta 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 the defendant. The Clerk of Court is further instructed to issue a summons and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon the defendant.

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. Valentin Order

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 the New York State Department of Corrections and Community Supervision (DOCCS) to identify the John Doe correction officer whom Plaintiff alleges escorted him to the bullpen at Sing Sing Correctional Facility on June 7, 2019. It is therefore ordered that the Attorney General of the State of New York, who is the attorney for and agent of DOCCS, must ascertain the identity and badge number of the John Doe whom Plaintiff seeks to sue here and the address where the defendant may be served. The 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 naming the John Doe defendant. 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 forms with the addresses for the named John Doe Defendants and deliver all documents necessary to effect service to the U.S. Marshals 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 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 their 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 further instructed to issue a summons, complete the USM-285 forms with the addresses for Correction Officer R. Lasanta, and deliver to the U.S. Marshals Service all documents necessary to effect service on this defendant.

The Clerk of Court is directed to mail a copy of this order and the complaint to Attorney General of the State of New York at: 28 Liberty Street, New York, NY 10005. An “Amended Complaint” form is attached to this order.

Local Civil Rule 33.2 applies to this action.

The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package.


Summaries of

Smith v. Lasanta

United States District Court, S.D. New York
Dec 1, 2021
21-CV-9509 (NSR) (S.D.N.Y. Dec. 1, 2021)
Case details for

Smith v. Lasanta

Case Details

Full title:SINCERE SMITH, Plaintiff, v. C.O. R. LASANTA; C.O. JOHN DOE, Defendants.

Court:United States District Court, S.D. New York

Date published: Dec 1, 2021

Citations

21-CV-9509 (NSR) (S.D.N.Y. Dec. 1, 2021)