Javier v. Russo

Opinion

UNITED STATES DISTRICT COURT ae □ SOUTHERN DISTRICT OF NEW YORK Cones AL JAVIER, pe | if 97 Plaintiff, -against- 21-CV-7097 (VB) ANTHONY RUSSO; SERGEANT ROSINSKY; ORDER OF SERVICE WATKINS; C.O. MORRISSEY; M. KOPP; ANTHONY ANNUCCI; A. RODRIGUEZ, Defendants.

VINCENT L. BRICCETTI, United States District Judge: Plaintiff, currently incarcerated at Green Haven Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his rights. By order dated September 9, 2021, the Court granted Plaintiff’s request to proceed in forma pauperis (IFP), that is, without prepayment of fees.! DISCUSSION A. Service on Defendants Because Plaintiff has been granted permission to proceed IFP, Plaintiff 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) (the court must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP)). Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that the summons and complaint be served within 90 days of the date the complaint is filed, Plaintiff is

! 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).

proceeding IFP and could not have served the summons and 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 the summons is issued. If the complaint is not served within that time, 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); see also Murray v. Pataki, 378 F. App’x 50, 52 (2d Cir. 2010) (“As long as the [plaintiff proceeding IFP] provides the information necessary to identify the defendant, the Marshals’ failure to effect service automatically constitutes ‘good cause’ for an extension of time within the meaning of Rule 4(m).”). To allow Plaintiff to effect service on Defendants 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 the Defendants. The Clerk of Court is further instructed to issue a summons and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon the Defendants. Plaintiff must notify the Court in writing if Plaintiff’s address changes, and the Court may dismiss the action if Plaintiff fails to do so. B. Standard Discovery Requests Local Civil Rule 33.2, which requires defendants in certain types of prisoner cases to respond to specific, court-ordered discovery requests, applies to this action. Those discovery requests are available on the Court’s website under “Forms” and are titled “Plaintiff’s Local Civil Rule 33.2 Interrogatories and Requests for Production of Documents.” Within 120 days of

service of the complaint, Defendants must serve responses to these standard discovery requests. In their responses, Defendants must quote each request verbatim.” CONCLUSION The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package. The Clerk of Court is further instructed to complete the USM-285 forms with the addresses for Defendants and deliver to the U.S. Marshals Service all documents necessary to effect service.

Local Civil Rule 33.2, which requires defendants in certain types of prisoner cases to respond to specific, court-ordered discovery requests, applies to this action. 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 31, 2022 \, ius Iu White Plains, New York □□□□□□□□□□□□□□□□□□□□□ United States District Judge

? Tf Plaintiff would like copies of these discovery requests before receiving the responses and does not have access to the website, Plaintiff may request them from the Pro Se Intake Unit.

DEFENDANTS AND SERVICE ADDRESSES

1. Anthony Annucci Acting DOCCS Commissioner DOCCS Bldg 2., State Campus Albany, New York 12226-2050 2. A. Rodriguez Acting Disciplinary Director DOCCS Bldg 2., State Campus Albany, New York 12226-2050 3, Anthony Russo Green Haven Correctional Facility 594 Rt. 216 Stormville, NY 12582-0010 4, M. Kopp Deputy Superintendent of Programs Green Haven Correctional Facility 594 Rt. 216 Stormville, NY 12582-0010 5. Correction Officer Morrissey Green Haven Correctional Facility 594 Rt. 216 Stormville, NY 12582-0010 6. Sergeant Rosinsky Green Haven Correctional Facility 594 Rt. 216 Stormville, NY 12582-0010 7. Correction Officer Watkins Green Haven Correctional Facility 594 Rt. 216 Stormville, NY 12582-0010