Asuncion v. Bard College

Opinion

USDC SONY DOCUMENT : RIC || ELECTRONICALLY FILE UNITED STATES DISTRICT COURT noc #: SOUTHERN DISTRICT OF NEW YORK DATE FILED: (9 □□□□□□ JOHN A. ASUNCION, Se

Plaintiff, 20-CV-4061 (NSR) -against- ORDER OF SERVICE BARD COLLEGE, Defendant. NELSON S. ROMAN, United States District Judge: Plaintiff, appearing pro se, brings this action under Title VII of the Civil Rights Act, 42 US.C. §§ 2000e to 2000e-17, and 42 U.S.C. § 1981, alleging that Defendant discriminated against him because of his sex and race. By order dated June 1, 2020, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis. 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 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 F. App’x 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 Bard College 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 this 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 this 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. CONCLUSION The Clerk of Court is instructed to complete the USM-285 form with the addresses for Bard College and deliver to the U.S. Marshals Service all documents necessary to effect service. Plaintiff has consented to receive court documents electronically.

SO ORDERED. Dated: October 9, 2020 White Plains, New York

NELSON STEPHEN ROMÁN United States District Judge DEFENDANT AND SERVICE ADDRESS Bard College P.O. Box 5000 Annandale-on-Hudson, New York 12504