Jude v. New York State Office of Mental Health

Opinion

DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK DATE FILED: _ 2/14/2023 STEVEN JUDE, Plaintiff, 22-CV-7441 (NSR) -against- SUPPLEMENTAL ORDER OF NEW YORK STATE OFFICE OF MENTAL SERVICE HEALTH (“OMH”), et al., Defendants.

NELSON S. ROMAN, United States District Judge: Plaintiff, who is currently incarcerated at Five Points Correctional Facility, brings this pro se action under 42 U.S.C. § 1983; the Americans with Disabilities Act of 1990, 42 USC § 12112 et seq; the Rehabilitation Act of 1973, 29 U.S.C. § 794; and the Humane Alternatives to Long- Term Solitary Confinement Act, N.Y. Correct. Law § 137. Plaintiff asserts that while confined at Sullivan Correction Facility, he was subjected to unconstitutional conditions of confinement, and was discriminated against because of his sensorial, physical, and mental disabilities. (ECF No. 2.) By order dated September 14, 2022, the court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.! (ECF No. 4.) In an order dated November 2, 2022, this Court ordered the New York State Attorney General (“NYAG”) to ascertain the full identity and address of Defendant “Morrow.” (ECF No. 7.) NYAG responded by letter dated December 14, 2022, identifying Defendant Morrow as Commissioner’s Hearing Officer Virginia Morrow and providing an address for service. (ECF No. 12.)

' 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).

Plaintiff filed an Amended Complaint on January 13, 2023. (ECF No. 28.) In the Amended Complaint, Plaintiff named Commissioner’s Hearing Officer Virginia Morrow as a Defendant. (Id.) Plaintiff also added Defendant Paula Bozer, M.D., the “Medical Director” of the New York State Department of Corrections and Community Supervision (“DOCCS”). (Id.)

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 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 Virginia Morrow and Paula Bozer, M.D., 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 defendant. 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 each defendant.

If the 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 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 instructed to issue summonses for Defendants Virginia Morrow and Paula Bozer, M.D., 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. The Clerk of Court is also directed to mail a copy of this Order to pro se Plaintiff at his address on ECF and to show service on the docket.

SO ORDERED. Dated: February 14, 2023 White Plains, New York NelsonS.Romén United States District Judge

DEFENDANTS AND SERVICE ADDRESSES Commissioner’s Hearing Officer Virginia Morrow New York State DOCCS The Harriman State Campus, Building 4 1220 Washington Avenue Albany, New York 12226

Paula Bozer, M.D. Medical Director of DOCCS New York State DOCCS The Harriman State Campus, Building 2 1220 Washington Avenue Albany, New York 12226