Gibson v. Burnett

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

DAVID GIBSON,

Plaintiff, No. 22-CV-1122 (KMK) v. ORDER OF SERVICE SUPT. EDWARD BURNETT; AKINYOMBO, Deputy of Health; R.N. DANILLE LEBRON, Individual Capacity; STEPHEN URBANSKI, Former Deputy of Security; BARBARA FURCO, Nurse Administrator; SGT. EDGMOND JOHN DOE,

Defendants.1

KENNETH M. KARAS, United States District Judge: Plaintiff brings this Action pro se under 42 U.S.C. § 1983, alleging, among other things, various violations of his constitutional rights while he was incarcerated at Fishkill Correctional Facility (“Fishkill”). (See generally Am. Compl.) On January 23, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. (See Dkt. No. 50.)

1 The Clerk of Clerk is respectfully asked to update the docket to reflect the spellings of Defendant’s names herein, which aligns with the spellings Plaintiff used in the Amended Complaint. (See Am. Compl. (Dkt. No. 12).) I. Discussion A. Service on Defendants Burnett, Akinyombo, Lebron, Urbanski, and Furco 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) (providing that 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 Burnett, Akinyombo, Lebron, Urbanski, and Furco through the U.S. Marshals Service, the Clerk of Court is respectfully instructed to fill out a U.S. Marshals Service Process Receipt and Return form (“USM-285 form”) for 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. If the second amended complaint (discussed below) is not served within ninety 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.

2 Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that a summons be served within ninety days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served summonses and the amended complaint until the Court reviewed the amended complaint and ordered that summonses be issued. The Court therefore extends the time to serve until ninety days after the date summonses are issued. 2 B. John Doe Defendant Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the Amended Complaint, Plaintiff supplies sufficient information to permit the New York State Department of Corrections and

Community Supervision to identify “[Sergeant] Edgmond John Doe,” who was alleged to be involved in the deprivations of Plaintiff’s rights. It is therefore ordered that the New York State Attorney General, who is the attorney for and agent of the New York State Department of Corrections and Community Supervision, must ascertain the identity and badge number of this John Doe whom Plaintiff seeks to sue here and the address where he may be served. The New York State Attorney General must provide this information to Plaintiff and the Court within sixty days of the date of this Order. Within thirty days of receiving this information, Plaintiff must file a second amended complaint naming the John Doe Defendant. The second amended complaint will replace, not supplement, the Amended Complaint. An amended complaint form that Plaintiff should

complete is attached to this Order. Once Plaintiff has filed a second amended complaint, the Court will screen that complaint 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 Defendant and deliver all documents necessary to effect service to the U.S. Marshals Service. II. Conclusion The Clerk of Court is respectfully instructed to issue summonses for Defendants Burnett, Akinyombo, Lebron, Urbanski, and Furco, complete the USM-285 forms with the addresses for these Defendants, and deliver all documents necessary to effect service to the U.S. Marshals Service. 3 The Clerk of Court is further asked to mail a copy of this Order and the Amended Complaint to the New York State Attorney General at: 28 Liberty Street, New York, New York 10007. Finally, the Clerk of Court is directed to mail a copy of this Order and an information package to Plaintiff. SO ORDERED. Dated: April 25, 2024 White Plains, New York bent KENNETH M. KARAS United States District Judge

DEFENDANTS AND SERVICE ADDRESSES

Supt. Edward Burnett Fishkill Correctional Facility 18 Strack Drive Beacon, New York 12508 Akinyombo, Deputy of Health Fishkill Correctional Facility 18 Strack Drive Beacon, New York 12508 R.N. Danille Lebron Fishkill Correctional Facility 18 Strack Drive Beacon, New York 12508 Stephen Urbanski, Former Deputy of Security Office of Counsel, N.Y. State Department of Corrections and Community Supervisor The Harriman State Campus, Building 2 1220 Washington Avenue Albany, New York 12226 Barbara Furco, Nurse Administrator Fishkill Correctional Facility 18 Strack Drive Beacon, New York 12508

5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

CVE Write the full name of each plaintiff. (Include case number if one has been assigned)

“against- COMPLAINT (Prisoner) Do you want a jury trial? ssssssss...0.0.0. L1Yes LINo

Write the full name of each defendant. If you cannot fit the names of all of the defendants in the space provided, please write “see attached” in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section IV.

NOTICE The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual’s full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2.

Rev. 5/20/16

I. LEGAL BASIS FOR CLAIM State below the federal legal basis for your claim, if known. This form is designed primarily for prisoners challenging the constitutionality of their conditions of confinement; those claims are often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or ina “Bivens” action (against federal defendants). L] Violation of my federal constitutional rights L] Other: II. PLAINTIFF INFORMATION Each plaintiff must provide the following information. Attach additional pages if necessary.

First Name Middle Initial Last Name

State any other names (or different forms of your name) you have ever used, including any name you have used in previously filing a lawsuit.

Prisoner ID # (if you have previously been in another agency’s custody, please specify each agency and the ID number (such as your DIN or NYSID) under which you were held)

Current Place of Detention

Institutional Address

County, City State Zip Code II. PRISONER STATUS Indicate below whether you are a prisoner or other confined person: L] Pretrial detainee L] Civilly committed detainee Immigration detainee L] Convicted and sentenced prisoner L] Other:

IV. DEFENDANT INFORMATION To the best of your ability, provide the following information for each defendant. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are identical to those listed in the caption. Attach additional pages as necessary. Defendant 1: First Name Last Name Shield #

Current Job Title (or other identifying information) Current Work Address

County, City State Zip Code Defendant 2: First Name Last Name Shield #

Current Job Title (or other identifying information)

Current Work Address

County, City State Zip Code Defendant 3: First Name Last Name Shield #

County, City State Zip Code Defendant 4: First Name Last Name Shield #

County, City State Zip Code

STATEMENT OF CLAIM Place(s) of occurrence:

Date(s) of occurrence: FACTS: State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach additional pages as necessary.

INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.

VI. RELIEF State briefly what money damages or other relief you want the court to order.

VII. PLAINTIFF’S CERTIFICATION AND WARNINGS By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by anonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. I understand that if I file three or more cases while I am a prisoner that are dismissed as frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in future cases. I also understand that prisoners must exhaust administrative procedures before filing an action in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be dismissed if I have not exhausted administrative remedies as required. I agree to provide the Clerk's Office with any changes to my address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case.

Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated Plaintiff's Signature

Prison Address

Date on which | am delivering this complaint to prison authorities for mailing: