Duckett v. Demarco

S.D. New York

Duckett v. Demarco

DecidedFebruary 8, 2023

Docket1:23-cv-00228

StatusUnknown

This text of Duckett v. Demarco (Duckett v. Demarco) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Duckett v. Demarco, (S.D.N.Y. 2023).

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UNITED STATES DISTRICT COURT E DL OE CC #T :R ONIC ALLY FILED SOUTHERN DISTRICT OF NEW YORK DATE FILED: 2/8/2 023 ANTHONY BERNARD DUCKETT, Plaintiff, 1:23-CV-0228 (VEC) -against- ORDER OF SERVICE P.O. DANIEL DEMARCO, Defendant. VALERIE CAPRONI, United States District Judge: Plaintiff Anthony Bernard Duckett, who is presently held in the George R. Vierno Center on Rikers Island, brings this pro se action under 42 U.S.C. § 1983 seeking damages. He sues Police Officer Daniel Demarco. By order dated January 12, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.1 The Court directs service on Defendant Demarco. 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.2 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 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). 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 and could not have served a summons and the 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 that a summons is issued. To allow Plaintiff to effect service on Defendant Demarco 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 Defendant Demarco. The Clerk of Court is further instructed to issue a summons for Defendant Demarco and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon Defendant Demarco. If the complaint is not served on Defendant Demarco within 90 days after the date the summons is 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 Court directs the Clerk of Court to mail an information package to Plaintiff. The Court also directs the Clerk of Court to issue a summons for Defendant Demarco; complete a USM-285 form with the address for Defendant Demarco; and deliver all documents necessary to effect service on Defendant Demarco to the U.S. Marshals Service. SO ORDERED. Dated: February 7, 2023 New York, New York = (

United States District Judge

DEFENDANT AND SERVICE ADDRESS

Daniel Demarco, Shield No. 3893 Police Officer 46th Precinct 2120 Ryer Avenue Bronx, New York 10457-2919

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UNITED STATES DISTRICT COURT E DL OE CC #T :R ONIC ALLY FILED SOUTHERN DISTRICT OF NEW YORK DATE FILED: 2/8/2 023 ANTHONY BERNARD DUCKETT, Plaintiff, 1:23-CV-0228 (VEC) -against- ORDER OF SERVICE P.O. DANIEL DEMARCO, Defendant. VALERIE CAPRONI, United States District Judge: Plaintiff Anthony Bernard Duckett, who is presently held in the George R. Vierno Center on Rikers Island, brings this pro se action under 42 U.S.C. § 1983 seeking damages. He sues Police Officer Daniel Demarco. By order dated January 12, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.1 The Court directs service on Defendant Demarco. 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.2 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 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). 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 and could not have served a summons and the 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 that a summons is issued. To allow Plaintiff to effect service on Defendant Demarco 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 Defendant Demarco. The Clerk of Court is further instructed to issue a summons for Defendant Demarco and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon Defendant Demarco. If the complaint is not served on Defendant Demarco within 90 days after the date the summons is 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 Court directs the Clerk of Court to mail an information package to Plaintiff. The Court also directs the Clerk of Court to issue a summons for Defendant Demarco; complete a USM-285 form with the address for Defendant Demarco; and deliver all documents necessary to effect service on Defendant Demarco to the U.S. Marshals Service. SO ORDERED. Dated: February 7, 2023 New York, New York = (

United States District Judge

DEFENDANT AND SERVICE ADDRESS

Daniel Demarco, Shield No. 3893 Police Officer 46th Precinct 2120 Ryer Avenue Bronx, New York 10457-2919

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