Opinion
94 Civ. 6384 (TPG)
January 23, 2002
OPINION
Pro se plaintiff Ronald Williams brings this action under 42 U.S.C. § 1983 against defendants Captain William Harrell, Correction Officer Charles Carrington and "C.O. Perez" alleging the use of excessive force at Rikers Island. The Corporation Counsel has moved to dismiss the complaint as to C.O. Perez for lack of service of process. The motion is granted for lack of personal jurisdiction. Actually, the motion asserts that C.O. Perez has not been served with process. The motion is granted.
Facts
Plaintiff alleges that on May 29, 1994 defendant punched and kicked him as well as beat him with a Walkie Talkie while he was at Rikers Island. On September 6, 1994 plaintiff commenced this action. On September 9, 1997 the Court notified plaintiff he must show good cause for his failure to make timely service of process in order to prevent dismissal of the action. On October 29, 1997 the Court extended plaintiffs time for service until January 2, 1998 and directed the Pro Se Clerk's Office to send plaintiff the proper forms. Attempts by the Marshal's Office to effect service upon defendants failed. This was recorded on the docket on December 11, 1997. On March 10, 1998 the Court directed Corporation Counsel to assist in ascertaining the identities of the officers involved. Plaintiff effected service on defendant Harrell October 22, 1998 and on defendant Carrington October 28, 1998.
At a pretrial conference held on February 23, 2000 Corporation Counsel was again directed to assist plaintiff in ascertaining the identity of C.O. Perez. Thereafter Corporation Counsel notified plaintiff in a letter dated February 26, 2000 that it was unable to identify any correction officer Perez who may have been involved in the May 29, 1994 incident and requested plaintiff provide a description, any identifying marks or other information that would facilitate identification of C.O. Perez. In a letter dated November 21, 2000 plaintiff informed Corporation Counsel that he only had the correction officer's name and did not know of any distinguishing marks or scars.
To date C.O. Perez still has not been identified and has not been served in the intervening 6-7 years since the commencement of this action.
Discussion
Plaintiff in this action is proceeding pro se. "Implicit in the right to self representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training."Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). However, such protection "does not exempt a party from compliance with relevant rules of procedural and substantive law. . . ." Id. Furthermore, "ignorance of the law, even in the context of pro se litigants, does not constitute good cause [under Rule 4(m)]." Amnay v. Del Labs, 17 F. Supp. 2 d 283, 285 (E.D.N.Y. 2000).
Rule 4(m) provides in pertinent part:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure the court shall extend the time for service for an appropriate period.
The Court finds that Corporation Counsel has made a good faith effort to identify C.O. Perez and has been unable to do so. This alleged defendant has not been served, as required by the rule, despite lengthy extensions of time and the assistance of Corporation Counsel. Plaintiff has not attempted to show good cause for further extensions and in fact has not opposed the present motion.
The action is dismissed as to defendant "C.O. Perez".
SO ORDERED.