Lovett v. Bennett

Opinion

UNITED STATES DISTRICT COURT USDE SDNY SOUTHERN DISTRICT OF NEW YORK DOCUMENT ELECTRONICALLY FILED STEVEN J. LOVETT, DOC #: DATE FILED: 9/13/2022 Plaintiff, -against- 7:22-CV-5462 (NSR) ACTING SUPT. SUSIE BENNETT of Sullivan ORDER OF SERVICE Correctional Facility, SHANE TOPEL; KEVIN DARLING; FELIX SANTOS, Defendants. NELSON S. ROMAN, United States District Judge: Plaintiff Steven J. Lovett, who is currently incarcerated in the Sullivan Correctional Facility (“Sullivan”), brings this pro se action. He sues: (1) Acting Sullivan Superintendent Susie Bennett; (2) Sullivan Correction Officer Shane Topel; (3) Sullivan Correction Officer Kevin Darling; and (4) Sullivan Correction Officer Felix Santos. Plaintiff seeks damages and a transfer from Sullivan. The Court construes Plaintiff's amended complaint (ECF No. 6), which is the operative pleading for this action, as asserting claims under 42 U.S.C. § 1983. By Order dated July 5, 2022, 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. The Court also: (1) directs the Clerk of Court to add to this action as a defendant, under Rule 21 of the Federal Rules of Civil Procedure, an unidentified “John Doe” official of the New York State Department of Corrections and Community Supervision (“DOCCS”) who is responsible for Plaintiff’s recent transfer to Sullivan; (2) directs the Attorney General of the State of New York to ascertain the identity of

' 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).

any such official, and to inform the Court and Plaintiff of the identity and service address of any such official; and (3) grants Plaintiff leave to file a second amended complaint to name any such official as a defendant. DISCUSSION A. Service on the defendants 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 the 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 for each of the defendants and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon the defendants.

If the amended complaint is not served on the defendants 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. B. Rule 21 of the Federal Rules of Civil Procedure Plaintiff appears to assert that unidentified DOCCS officials transferred him to Sullivan in retaliation for his testimony in a federal civil action brought against members of the Sullivan staff. Because Plaintiff fails to name any of those DOCCS officials as defendants, the Court directs the Clerk of Court, under Rule 21 of the Federal Rules of Civil Procedure, to amend the caption of this action to add “John Doe DOCCS official” as a defendant. This amendment is without prejudice to any defenses that any such official may wish to assert.

C. “John Doe DOCCS official” Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying an unidentified defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the amended complaint, Plaintiff supplies sufficient information to permit DOCCS to identify Defendant “John Doe DOCCS official,” which is any DOCCS official responsible for Plaintiff’s recent transfer to Sullivan. It is therefore ordered that the Attorney General of the State of New York, who is the attorney for and agent of DOCCS, must ascertain the identity of any such official whom Plaintiff seeks to sue here and the address where that official may be served. The Attorney General must provide this information to Plaintiff and the Court within 60 days of the date of this order. Within 30 days of receiving this information, Plaintiff must file a second amended

complaint naming the newly identified defendant(s). The second amended complaint will replace, not supplement, the original and amended complaints. A second amended complaint form that Plaintiff should complete is attached to this order. Once Plaintiff has filed a second amended complaint, the Court will screen it and, if necessary, issue an order directing service on the newly identified defendant(s). CONCLUSION The Court directs the Clerk of Court to mail an information package to Plaintiff, along with a copy of this Order. The Court also directs the Clerk of Court to: (1) issue summonses for the defendants; (2) complete USM-285 forms with the service addresses of the defendants; and (3) deliver all documents necessary to effect service of summonses and the amended complaint (ECF 6) on the defendants to the U.S. Marshals Service. The Court further directs the Clerk of Court to add “John Doe DOCCS official” as a defendant, pursuant to Rule 21 of the Federal Rules of Civil Procedure. The Court additionally directs the Clerk of Court to mail a copy of this order and the amended complaint (ECF 6) to the Attorney General of the State of New York at: 28 Liberty Street, 16th Floor, New York, New York 10005. A second amended complaint form is attached to this order. SO ORDERED. Dated: September 13, 2022 White Plains, New York NELSON S.ROMAN United States District Judge

DEFENDANTS AND SERVICE ADDRESSES

Susie Bennett Acting Superintendent Sullivan Correctional Facility 325 Riverside Drive P.O. Box 116 Fallsburg, New York 12733-0116 Shane Topel Correction Officer Sullivan Correctional Facility 325 Riverside Drive P.O. Box 116 Fallsburg, New York 12733-0116 Kevin Darling Correction Officer Sullivan Correctional Facility 325 Riverside Drive P.O. Box 116 Fallsburg, New York 12733-0116 Felix Santos Correction Officer Sullivan Correctional Facility 325 Riverside Drive P.O. Box 116 Fallsburg, New York 12733-0116 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? ☐ Yes ☐ No

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. 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 in a “Bivens” action (against federal defendants). ☐ Violation of my federal constitutional rights ☐ Other: II. 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: 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 #

County, City State Zip Code Defendant 3: First Name Last Name Shield #

County, City State Zip Code Defendant 4: First Name Last Name Shield #

County, City State Zip Code 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. INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.

VI. RELIEF State briefly what money damages or other relief you want the court to order. VII. 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. I 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. I 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

Prison Address

County, City State Zip Code

Date on which I am delivering this complaint to prison authorities for mailing: