UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ALFONSO A. HOWARD, Plaintiff, 23-CV-6923 (CS) -against- ORDER OF SERVICE COMMISSIONER ANTHONY ANNUCCI, et al., Defendants. Cathy Seibel, United States District Judge: Plaintiff Alfonso Howard, who is currently incarcerated at Sing Sing Correctional Facility in the custody of the New York State Department of Corrections and Community Supervision (DOCCS), brings this action pro se action. Plaintiff filed an amended complaint (ECF 7) in which he asserts claims arising from the denial of Jumah prayer service on April 14, 2023. By order dated August 28, 2023, the Court granted Plaintiff's request to proceed in forma pauperis (IFP), that is, without prepayment of fees.! DISCUSSION A. Service on Defendants Annucci and Joseph 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) (indicating that the court must order the . Marshals Service to serve if the plaintiff is authorized to proceed IFP)).
' Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed in forma pauperis. 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 summonses be issued. The Court therefore extends the time to serve until 90 days after the date summonses are issued.
To allow Plaintiff to effect service on Defendants DOCCS Commissioner Anthony Annucci and Correctional Sergeant Joseph 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 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 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 plaintiffs 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. John Doe Defendants 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 may supply sufficient information to permit DOCCS to identify the two John Doe Defendants, It is therefore ordered that the New York State Attorney General, who is the attorney for and agent of DOCCS, must ascertain the identity and badge number of each John Doe whom Plaintiff seeks to sue here and the address where each 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 defendants. The second amended complaint will replace, not supplement, the original complaint. A second amended complaint form that Plaintiff should complete is attached to this order. Once Plaintiff has filed the second amended complaint, the
Court will screen 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 of the documents necessary to effect service. C. Referral to the New York Legal Assistance Group Clinic Plaintiff may consult the legal clinic in this District that assists people who are parties in civil cases and do not have lawyers. The Clinic is run by a private organization called the New York Legal Assistance Group (NYLAG)); it is not part of, or run by, the court (and, among other things, therefore cannot accept filings on behalf of the court, which must still be made by any pro se party through the Pro Se Intake Unit). To receive limited-scope assistance from the Clinic, Plaintiff may mail a signed retainer and intake form to the NYLAG Pro Se Clinic at 40 Foley Square, LL22, NY, NY 10007. Once the paperwork is received, the Clinic will coordinate contact with the litigant, which may take up to two weeks, Copies of the Clinic’s flyer, retainer, and intake form are attached to this order. dD. Request for Pro Bono Counsel Plaintiff requests pro bono counsel. (ECF 3.) The factors to be considered in ruling on an indigent litigant’s request for counsel include the merits of the case, Plaintiffs efforts to obtain a lawyer, and Plaintiff's ability to gather the facts and present the case if unassisted by counsel. See Cooper v_A, Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Hodge y. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are “[t{he factor which command|s] the most attention.” Cooper, 877 F.2d at 172. Because it is too early in the proceedings for the Court to assess the merits of the action, Plaintiff's motion for counsel is denied without prejudice to renewal at a later date.
CONCLUSION Plaintiff's request for pro bono counsel (ECF 3) is denied without prejudice. The Clerk of Court is instructed to: (1) issue summonses for DOCCS Commissioner Anthony Annucci and Correctional Sergeant Joseph, 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: (2) mail a copy of this order and the complaint to the New York State Attorney General at: 28 Liberty Street, 16th Floor, New York, New York 10005; and (3) mail a second amended complaint form and information package to Plaintiff. Plaintiff is referred to the NYLAG Pro Se Clinic. Copies of the Clinic’s flyer, retainer, and intake form are attached to this order. SO ORDERED. Dated: p}r4/23 White Plains, New York (thy dels CATHY SEIBEL United States District Judge
DEFENDANTS AND SERVICE ADDRESSES 1, DOCCS Commissioner Anthony Annucci The Harriman State Campus Albany, New York 12226-2050 2. Correctional Sergeant Joseph Sing Sing Correctional Facility 354 Hunter Street Ossining, New York 10562
N ; A G Since 1990, NYLAG has provided free civil legal services to New Yorkers who cannot afford private attorneys. New York HD Legal Assistance Group Free Legal Assistance for Self-Represented Incarcerated Civil Litigants in Federal District Court
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ALFONSO A. HOWARD, Plaintiff, 23-CV-6923 (CS) -against- ORDER OF SERVICE COMMISSIONER ANTHONY ANNUCCI, et al., Defendants. Cathy Seibel, United States District Judge: Plaintiff Alfonso Howard, who is currently incarcerated at Sing Sing Correctional Facility in the custody of the New York State Department of Corrections and Community Supervision (DOCCS), brings this action pro se action. Plaintiff filed an amended complaint (ECF 7) in which he asserts claims arising from the denial of Jumah prayer service on April 14, 2023. By order dated August 28, 2023, the Court granted Plaintiff's request to proceed in forma pauperis (IFP), that is, without prepayment of fees.! DISCUSSION A. Service on Defendants Annucci and Joseph 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) (indicating that the court must order the . Marshals Service to serve if the plaintiff is authorized to proceed IFP)).
' Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed in forma pauperis. 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 summonses be issued. The Court therefore extends the time to serve until 90 days after the date summonses are issued.
To allow Plaintiff to effect service on Defendants DOCCS Commissioner Anthony Annucci and Correctional Sergeant Joseph 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 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 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 plaintiffs 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. John Doe Defendants 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 may supply sufficient information to permit DOCCS to identify the two John Doe Defendants, It is therefore ordered that the New York State Attorney General, who is the attorney for and agent of DOCCS, must ascertain the identity and badge number of each John Doe whom Plaintiff seeks to sue here and the address where each 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 defendants. The second amended complaint will replace, not supplement, the original complaint. A second amended complaint form that Plaintiff should complete is attached to this order. Once Plaintiff has filed the second amended complaint, the
Court will screen 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 of the documents necessary to effect service. C. Referral to the New York Legal Assistance Group Clinic Plaintiff may consult the legal clinic in this District that assists people who are parties in civil cases and do not have lawyers. The Clinic is run by a private organization called the New York Legal Assistance Group (NYLAG)); it is not part of, or run by, the court (and, among other things, therefore cannot accept filings on behalf of the court, which must still be made by any pro se party through the Pro Se Intake Unit). To receive limited-scope assistance from the Clinic, Plaintiff may mail a signed retainer and intake form to the NYLAG Pro Se Clinic at 40 Foley Square, LL22, NY, NY 10007. Once the paperwork is received, the Clinic will coordinate contact with the litigant, which may take up to two weeks, Copies of the Clinic’s flyer, retainer, and intake form are attached to this order. dD. Request for Pro Bono Counsel Plaintiff requests pro bono counsel. (ECF 3.) The factors to be considered in ruling on an indigent litigant’s request for counsel include the merits of the case, Plaintiffs efforts to obtain a lawyer, and Plaintiff's ability to gather the facts and present the case if unassisted by counsel. See Cooper v_A, Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Hodge y. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are “[t{he factor which command|s] the most attention.” Cooper, 877 F.2d at 172. Because it is too early in the proceedings for the Court to assess the merits of the action, Plaintiff's motion for counsel is denied without prejudice to renewal at a later date.
CONCLUSION Plaintiff's request for pro bono counsel (ECF 3) is denied without prejudice. The Clerk of Court is instructed to: (1) issue summonses for DOCCS Commissioner Anthony Annucci and Correctional Sergeant Joseph, 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: (2) mail a copy of this order and the complaint to the New York State Attorney General at: 28 Liberty Street, 16th Floor, New York, New York 10005; and (3) mail a second amended complaint form and information package to Plaintiff. Plaintiff is referred to the NYLAG Pro Se Clinic. Copies of the Clinic’s flyer, retainer, and intake form are attached to this order. SO ORDERED. Dated: p}r4/23 White Plains, New York (thy dels CATHY SEIBEL United States District Judge
DEFENDANTS AND SERVICE ADDRESSES 1, DOCCS Commissioner Anthony Annucci The Harriman State Campus Albany, New York 12226-2050 2. Correctional Sergeant Joseph Sing Sing Correctional Facility 354 Hunter Street Ossining, New York 10562
N ; A G Since 1990, NYLAG has provided free civil legal services to New Yorkers who cannot afford private attorneys. New York HD Legal Assistance Group Free Legal Assistance for Self-Represented Incarcerated Civil Litigants in Federal District Court
NYLAG Legal Clinic for Pro Se Litigants in The Clinic Can: Southern District of New York is a free legal staffed by attorneys, law students,and Assist with amending complaints and responding □□ to assist those who are representing: motions to dismiss; or planning to represent themselves, - = Represent litigants for settlement purposes and, in incarcerated litigants, in civil lawsuits in limited circumstances, for depositions; Southern District of New York federal court, « Assist with written discovery; habeas cases. The clinic isnot partofor □ » Recruit pro bono counsel for depositions and trial; by the court. and if a litigant has consulted with Clinic staff, __« Assist with oppositions to summary Judgment. they retain other counsel and that counsel — . . Meee cnt Clinic staff cannot assist with habeas cases or a notice of appearance, they remain a : criminal matters. are responsible fordoing =... = is necessary in connection with the case; . WNYLAG may also be unable to assist if it determines, in still vem * court Papers one Pr ° its professional legal judgement, that (i) you have inta © Unit, focate in-Room 105 of the Daniel Lefused to cooperate with the Clinic’s counsel or follow Moynihan Courthouse, 40 Foley Square, tos ges . ve ; the Clinie’s advice; (ii) any assistance would be York, New York, or by following the court’s © -.: ee □□□ weg . vs - unreasonably difficult for NYLAG to carry out; or (iii) for filing via email asa pro se litigant, . . . a - your case is or will become frivolous, unreasonable, groundless, or without merit. the Clinic: contact the clinic and request a copy of our retainer, please call (212) 659-6190 and leave a message or to us at the following address: NYLAG Legal Clinic for Pro Se Litigants Thurgood Marshall Federal Courthouse Room LL22 40 Foley Square New York, NY 10007 mail a signed retainer back to the clinic at the above address. Once the paperwork is received, clinic will contact you, It may take up to two weeks. Disclaimer: The information contained herein is for informational purposes only and is not legal advice or a substitute for legal counsel, nor does it constitute advertising or a solicitation. utAd □□□□□□□□□□ of New ¥Yark
New York HE Legal Assistance Group LEGAL CLINIC FOR PRO SE LITIGANTS IN THE SOUTHERN DISTRICT OF NEW YORK LIMITED SCOPE LEGAL ASSISTANCE RETAINER AGREEMENT You retain the New York Legal Assistance Group (NYLAG) to provide you with limited scope legal assistance through its Legal Clinic for Pro Se Litigants in the Southern District of New York (Clinic) under the terms set forth below. I, LIMITS OF ASSISTANCE The Clinic agrees to provide only limited scope legal assistance in connection with your matter. This means that: e You remain a self-represented (pro se} litigant and are responsible for all aspects of your case. NYLAG is not your attorney of record in this matter. In the event that you are or become a party to a case in the Southern District of New York or any other forum, NYLAG will not enter an appearance or otherwise act on your behalf without expressly agreeing to do so and entering into a separate signed agreement with you. NYLAG has no obligation to enter into any such agreement. e NYLAG has sole discretion to determine the specific type of services provided. These services may include providing advice and counsel about your case, explaining court orders and procedures, reviewing and commenting on your drafts, assisting with drafting, and discussing strategy. e This retainer covers an initial consultation only. NYLAG can stop assisting you with this matter at any time for any reason consistent with the New York Rules of Professional Conduct. e NYLAG has not agreed to represent or assist you on any other matter in the future. If NYLAG does agree to any representation on another matter, then a separate signed retainer agreement will be necessary. e You may request but are not guaranteed subsequent appointments. NYLAG will only provide assistance on subsequent appointments if it provides you with confirmation to you of such assistance, via email or otherwise, with such additional assistance governed by the terms of this agreement, including that the assistance is for that consultation only and that NYLAG has sole discretion to decide whether it will provide any additional future consultations. You are responsible for and must meet all deadlines in your case, regardless of whether you are able to have an appointment with the Clinic. Il. FREE ASSISTANCE, NON-ATTORNEY PROVIDERS, AND COMPETENCY NYLAG does not charge for this assistance. You may be assisted by law students and/or paralegals under the supervision of an attorney consistent with the Rules of Professional Responsibility. NYLAG’s assistance does not guarantee success or any particular outcome but that NYLAG will provide competent assistance,
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Signature Date
Once you haye completed this form, please mail it and the completed demographic form to the New York Legal Assistance Group, Pro Se Clinic, 40 Foley Square, LL22, New York, NY 10007.
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Once you have completed this form, please mail it and the completed retainer to the New York Legal Assistance Group, Pro Se Clinic, 40 Foley Square, LL22, New York, NY 10007.
ooo
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
CV. Write the full name of each plaintiff. (Include case number if one has been assigned} SECOND AMENDED “against: COMPLAINT (Prisoner) Do you want a jury trial? Tt OYes ONo
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). Violation of my federal constitutional rights Other: Il, 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 III. PRISONER STATUS Indicate below whether you are a prisoner or other confined person: Pretrial detainee Civilly committed detainee {] Immigration detainee Convicted and sentenced prisoner Other:
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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 #
Current Job Title (or other identifying information)
Current Work Address
County, City State Zip Code Defendant 4: First Name Last Name Shield #
Current Job Title {or other identifying information)
Current Work Address
County, City State Zip Code
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V. 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.
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INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.
VIL RELIEF State briefly what money damages or other relief you want the court to order.
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VIL. 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 a nonfrivolous 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. 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. T 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
First Name Middle Initial Last Name
Prison Address
County, City State Zip Code
Date on which | am delivering this complaint to prison authorities for mailing:
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