Corines v. The Westchester County Dept. of Correction

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK PETER J. CORINES, Plaintiff, -against- THE COUNTY OF WESTCHESTER; CARL VOLLMER, Assistant Warden & Administrative Officer of the Jail; FRANCIS DELGROSSO, 22-CV-5179 (KMK) Assistant Warden & Chief Administrative ORDER OF SERVICE Officer; JOHN DOE 1 MAILROOM OFFICER; JOHN DOE 2 PROPERTY OFFICER; JOHN DOE 3 PROPERTY OFFICER; SGT. HURLEY #181, Grievance Coordinator; SGT. REYES- RHODES #223; SGT. LOPEZ #209; SGT. ASHTERMAN, Defendants. KENNETH M. KARAS, United States District Judge: Plaintiff, who is proceeding pro se and in forma pauperis (IFP), brings this action alleging that Defendants violated his rights when he was incarcerated in Westchester County Jail.1 By order dated September 19, 2022, the Court directed Plaintiff to amend his complaint to address deficiencies in his original pleading. (Dkt. No. 6.) Plaintiff filed an amended complaint on December 14, 2022. (Dkt. No. 9.) DISCUSSION A. Service on Named 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.2 Walker v. Schult, 717 F.3d. 119, 123 n.6

1 On September 2, 2022, the Court granted Plaintiff’s request to proceed in forma pauperis, that is, without prepayment of fees. (Dkt. No. 5.) 2 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 (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)). To allow Plaintiff to effect service on Defendants County of Westchester, Assistant

Wardens Carl Vollmer and Francis Delgrosso, and Sergeants Hurley, Reyes-Rhodes, Lopez, and Ashterman 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 of the paperwork necessary for the Marshals Service to effect service upon Defendants. If the amended 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. B. Identification of John Doe Defendants Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997). In the amended complaint, Plaintiff may supply sufficient information to permit the Westchester County Department of Correction to identify the John Doe mail room and package room employees

and could not have served any summons until the Court reviewed the complaint (and amended complaint) and ordered that summonses be issued. The Court therefore extends the time to serve until 90 days after the date summonses are issued. responsible for incoming and outgoing mail and packages on the dates indicated. It is therefore ordered that the Westchester County Attorney, who is the attorney for and agent of the Westchester County Department of Correction, must ascertain the identity and badge number of the John Doe defendants whom Plaintiff seeks to sue here and the address where each defendant

may be served. The Westchester County Attorney must provide this information to Plaintiff and the Court within 60 days of the date of this order. Within 30 days of receiving this information, Plaintiff must file a second amended complaint naming the John Doe defendants. The second amended complaint will replace, not supplement, the original complaint. A second amended complaint form is attached to this order. Once Plaintiff has filed a second amended complaint, the Court will review it and, if necessary, issue an order directing the Clerk of Court to complete the USM-285 forms with the addresses for the named John Doe Defendants and deliver to the U.S. Marshals Service all documents necessary to effect service. CONCLUSION The Clerk of Court is instructed to issue summonses for Defendants County of

Westchester, Assistant Wardens Carl Vollmer and Francis Delgrosso, and Sergeants Hurley, Reyes-Rhodes, Lopez and Ashterman; complete the USM-285 forms with the addresses for these defendants; and deliver to the U.S. Marshals Service all documents necessary to effect service. The Clerk of Court is further directed to mail a copy of this order and the amended complaint to Westchester County Attorney at: 148 Martine Avenue, White Plains, NY 10601. A second amended complaint form for Plaintiff to complete, once he is notified of the names of the Doe defendants, is attached to this order. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). SO ORDERED. Dated: January 12, 2023 White Plains, New York

KENNETH M. KARAS United States District Judge DEFENDANTS AND SERVICE ADDRESSES

County of Westchester Westchester County Attorney’s Office 148 Martine Avenue White Plains, New York 10601 Carl Vollmer, Assistant Warden Westchester County Jail 10 Woods Road Valhalla, New York 10595 Francis Delgrosso, Assistant Warden Westchester County Jail 10 Woods Road Valhalla, New York 10595 Sergeant Hurley, #181 Grievance Coordinator Westchester County Jail 10 Woods Road Valhalla, New York 10595 Sergeant Reyes-Rhodes, #223 Westchester County Jail 10 Woods Road Valhalla, New York 10595 Sergeant Lopez, #209 Westchester County Jail 10 Woods Road Valhalla, New York 10595 Sergeant Ashterman, #190 Westchester County Jail 10 Woods Road Valhalla, New York 10595