Liu v. Dicarlo

Opinion

DOC#: DATE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK FENG “KEVIN” LIU, Plaintiff, -against- 19-CV-8031 (ALC) FRANK DiCARLO; OTHER LAW ORDER OF SERVICE ENFORCEMENT OFFICER(S) OF FBI; UNITED STATES OF AMERICA, Defendants. ANDREW L. CARTER, JR., United States District Judge: Plaintiff, appearing pro se, brings this action under the Federal Tort Claims Act. By order dated September 4, 2019, the Court granted Plaintiffs request to proceed without prepayment of fees, that is, in forma pauperis. STANDARD OF REVIEW The Court must dismiss an in forma pauperis complaint, or portion thereof, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original),

DISCUSSION A. Claims Against the Individual Defendants The FTCA, codified at 28 U.S.C. §§ 1346(b), 2671-80, provides for a waiver of sovereign immunity for certain claims for monetary damages arising from the tortious conduct of federal government officers or employees acting within the scope of their office or employment. See 28 U.S.C. § 1346(b)(1). The proper defendant for an FTCA claim is the United States of America. Holliday v. Augustine, No. 3:14-CV-0855, 2015 WL 136545, at *1 (D. Conn. Jan. 9, 2015), Plaintiff's FTCA claims against the individual defendants are dismissed for failure to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). B. Service on the United States of America 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)). 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 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 A(m).”). To allow Plaintiff to effect service on Defendant United States of America 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 a summons and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon these defendants. The Clerk of Court is further instructed to: (1) mark the box on the USM-285 forms labeled “Check for service on U.S.A.”; and (2) issue summonses and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon these defendants. 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 Court dismisses Plaintiff's claims against Frank DiCarlo and “other law enforcement officer(s) of FBI. See 28 U.S.C. § 1915(e)(2)(B) (ii). The Clerk of Court is directed to complete the USM-285 forms with the address for the United States of America, mark the box on the USM-285 forms labeled “Check for service on U.S.A.,” and deliver all documents necessary to effect service to the U.S. Marshals Service. The Clerk of Court is further directed to mail a copy of this order to Plaintiff, together with an information package. The Clerk of Court is directed to docket this as a “written opinion” within the meaning of Section 205(a)(5) of the E-Government Act of 2002.

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: September 16, 2019 New York, New York / ANDREW L. CARTER, JR. United States District Judge

DEFENDANTS AND SERVICE ADDRESSES

1. Federal Bureau of Investigation 26 Federal Plaza, 23" Floor New York, N.Y. 10278 2. The United States Attorney General’s Office Southern District of New York 86 Chambers Street New York, N.Y. 10007 3. The United States Attorney General The United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001