Barnes v. Uzu

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SERGIO BARNES, Plaintiff, 20-CV-5885 (KMK) -against- ORDER OF SERVICE DR. UZU; DR. AHMAD AKHAN; ROBERT BENTIVEGNA; A. MCCARTHY; LESLIE CAREY, Defendants. KENNETH M. KARAS, United States District Judge: Plaintiff, currently incarcerated in Green Haven Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants were deliberately indifferent to his serious medical needs. By order dated September 22, 2020, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (IFP).1 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 and complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served the summonses and 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 the summonses are

1 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). 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 Defendants Dr. Edwin Uzu, Dr. Amad Akhan, Dr. Robert Bentivegna, Dr. Carl Koeningsman, A. McCarthy, and Leslie Carey 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. 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 further instructed to complete the USM-285 forms with the addresses for Dr. Edwin Uzu, Dr. Amad Akhan, Dr. Robert Bentivegna, Dr. Carl Koeningsman, A. McCarthy, and Leslie Carey, issue summonses, and deliver to the U.S. Marshal’s Service all documents necessary to effect service. SO ORDERED. Dated: January 28, 2021 ij White Plains, New York enema ; =

KENNETH M. KARAS United States District Judge

DEFENDANTS AND SERVICE ADDRESSES

Dr. Edwin Uzu Green Haven Correctional Facility 594 Route 216 Stormville, New York 12582-0010 Dr. Ahmad Akhan Green Haven Correctional Facility 594 Route 216 Stormville, New York 12582-0010 Dr. Robert Bentivegna Green Haven Correctional Facility 594 Route 216 Stormville, New York 12582-0010 Dr. Carl Koeningsman Chief Medical Officer and Deputy Commissioner Harriman State Campus 1220 Washington Avenue Albany, NY 12226 A. McCarthy Green Haven Correctional Facility 594 Route 216 Stormville, New York 12582-0010 Leslie Carey Green Haven Correctional Facility 594 Route 216 Stormville, New York 12582-0010