Browne v. Anderson

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK KENDALL BROWNE, Plaintiff, -against- 23-CV-3173 (CS) P/O KENNETH T. ANDERSON; P/O GANESH ORDER OF SERVICE R. BHAGWANDEEN; P/O DANIEL J. GRAHAM; TOWN OF WALLKILL, Defendants. CATHY SEIBEL, United States District Judge: Plaintiff, who is appearing pro se, brings this action under 42 U.S.C. § 1983, alleging that Defendants violated his federal constitutional rights and his rights under state law. By order dated April 18, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”) – that is, without prepayment of fees. DISCUSSION 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.1 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)).

1 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 Defendants Town of Wallkill, and Officers Kenneth T. Anderson #1501, Ganesh R. Bhagwandeen #9409, and Daniel J. Graham #3690 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 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 Defendants. If the complaint is not served 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 the action if Plaintiff fails to do so. CONCLUSION The Clerk of Court is instructed to issue summonses, complete the USM-285 forms with the addresses for the Town of Wallkill, and Officers Kenneth T. Anderson #1501, Ganesh R. Bhagwandeen #9409, and Daniel J. Graham #3690, and deliver all documents necessary to effect service to the U.S. Marshals Service. The Clerk of Court is further directed to mail an information package to Plaintiff. SO ORDERED. Dated: April 26, 2023 White Plains, New York

United States District Judge

DEFENDANTS AND SERVICE ADDRESSES

Kenneth T. Anderson #1501 Town of Wallkill Police Department 99 Tower Drive Middletown, NY 10941 Ganesh R. Bhagwandeen #9409 Town of Wallkill Police Department 99 Tower Drive Middletown, NY 10941 Daniel J. Graham #3690 Town of Wallkill Police Department 99 Tower Drive Middletown, NY 10941 Town of Wallkill 99 Tower Dive B Middletown, NY 10941