Greene v. Martuscello

Opinion

USDC SDNY DOCUMENT UNITED STATES DISTRICT COURT ELECTRONICALLY FILED SOUTHERN DISTRICT OF NEW YORK . DOC #: TERRANCE GREENE, DATE FILED: _09/12/2024 __ Plaintiff, -against- 24-CV-5228 (NSR) COMMISSIONER DANIEL F. MARTUSCELLO; ORDER OF SERVICE SUPERINTENDENT MARLYN KOPP; C.O. K. BARNES, Defendants. NELSON S. ROMAN, United States District Judge: Plaintiff, who is currently incarcerated at the Essex Correctional Facility in Newark, New Jersey, brings this action under 42 U.S.C. § 1983, alleging that Defendants were deliberate indifferent to his serious medical needs while he was confined at Sing Sing Correctional Facility (“Sing Sing C.F.”). By order dated September 7, 2024, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.! The Court directs service on the defendants. 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.? 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

' 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). 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 effected service until the Court reviewed the complaint and ordered that any summonses be issued. The Court therefore extends the time to serve until 90 days after the date any summonses issue.

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 Commissioner Daniel Martuscello of the New York State Department of Corrections and Community Supervision; Superintendent Marlyn

Kopp of Sing Sing C.F.; and Correctional Officer K. Barnes of Sing Sing C.F 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 the paperwork necessary for the Marshals Service to effect service upon Defendants. If the complaint is not served within 90 days after the date 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 further instructed to issue a summons for each defendant, complete a USM-285 form with the address for each defendant, and deliver all documents necessary to effect service to the U.S. Marshals Service. The Clerk of Court is directed to mail a copy of this order to Plaintiff at the address listed on ECF, together with an information package, and to show service on the docket. SO ORDERED. Dated: September 12, 2024 White Plains, New York

NELSON S. ROMÁN United States District Judge SERVICE ADDRESS FOR EACH DEFENDANT

Commissioner Daniel Martuscello New York State Department of Corrections and Community Supervision 1220 Washington Avenue Bldg 2 Albany, New York 12226-2050 Superintendent Marlyn Kopp Sing Sing Correctional Facility 354 Hunter Street P.O. Box 442 Ossining, New York 10562-5442 K. Barnes, Correctional Officer Sing Sing Correctional Facility 354 Hunter Street P.O. Box 442 Ossining, New York 10562-5442