Cicio v. Royce

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK TERRY CICIO, Plaintiff, -against- MARK ROYCE, SUPERINTENDENT; D. MAZZELLA, SERGEANT; KRASHAW, CORRECTION OFFICER; BENFORD, CORRECTION 19-CV-9883 (CS) OFFICER; RUSSO, DEPUTY SUPERINTENDENT FOR SECURITY; HENN, LIEUTENANT; ORDER OF SERVICE RODRIGUEZ, CORRECTION OFFICER; AMIPACH, LIEUTENANT; JOHANEMAN, SERGEANT; CLAUSEN, CORRECTION OFFICER; BORUM, CORRECTION OFFICER; AJIKOBI, CORRECTION OFFICER; STANAWAY, INMATE GRIEVANCE SUPERVISOR; ALVEREZ, CORRECTION OFFICER, Defendants. CATHY SEIBEL, United States District Judge: Plaintiff, currently incarcerated at Five Points Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his rights under the First, Eighth, and Fourteenth Amendments while he was incarcerated at Green Haven Correctional Facility. By order dated November 21, 2019, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis.1 DISCUSSION A. Service on Defendants 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 Defendants Mark Royce, Superintendent; D. Mazzella, Sergeant; Krashaw, Correction Officer; Benford, Correction Officer; Russo, Deputy Superintendent for Security; Henn, Lieutenant; Rodriguez, Correction Officer; Amipach, Lieutenant; Johaneman, Sergeant; Clausen, Correction Officer; Borum, Correction Officer; Ajikobi, Correction Officer; Stanaway, Inmate Grievance Supervisor; and Alverez, Correction Officer, 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 a summons 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. B. 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. 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 Royce, Mazzella, Krashaw, Benford, Russo, Henn, Rodriguez, Amipach, Johaneman, Clausen, Borum, Ajikobi, Stanaway, and Alverez, and deliver all documents necessary to effect service to the U.S. Marshals Service. Local Civil Rule 33.2 applies to this action. Within 120 days of the date of this order, Defendants must serve responses to these standard discovery requests. In their responses, Defendants must quote each request verbatim. SO ORDERED. Dated: November 26, 2019 White Plains, New York A □ f g CATHY SEIBEL United States District Judge

DEFENDANTS AND SERVICE ADDRESSES 1. Mark Royce, Superintendent Green Haven Correctional Facility 594 Route 216 Stormville, New York 12582 2. D. Mazzella, Sergeant Green Haven Correctional Facility 594 Route 216 Stormville, New York 12582 3. Krashaw, Correction Officer Green Haven Correctional Facility 594 Route 216 Stormville, New York 12582 4. Russo, Deputy Superintendent for Security Green Haven Correctional Facility 594 Route 216 Stormville, New York 12582 5. Benford, Correction Officer Green Haven Correctional Facility 594 Route 216 Stormville, New York 12582 6. Henn, Lieutenant Green Haven Correctional Facility 594 Route 216 Stormville, New York 12582 7. Rodriguez, Correction Officer Green Haven Correctional Facility 594 Route 216 Stormville, New York 12582 8. Amipach, Lieutenant Green Haven Correctional Facility 594 Route 216 Stormville, New York 12582 9. Johaneman, Sergeant Green Haven Correctional Facility 594 Route 216 Stormville, New York 12582 10. Clausen, Correction Officer Green Haven Correctional Facility 594 Route 216 Stormville, New York 12582 11. Borum, Correction Officer Green Haven Correctional Facility 594 Route 216 Stormville, New York 12582 12. Ajikobi, Correction Officer Green Haven Correctional Facility 594 Route 216 Stormville, New York 12582 13. Stanaway, IGP Supervisor Green Haven Correctional Facility 594 Route 216 Stormville, New York 12582 14. Alverez, Correction Officer Green Haven Correctional Facility 594 Route 216 Stormville, New York 12582