Lu v. Hermans

Opinion

USDC SDNY UNITED STATES DISTRICT COURT DOCUMENT SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED DOC #: TANQIAO LU; DATE FILED: □ 93/12/2024 Plaintiff, -against- 24-CV-1023 (NSR) GEORGE HERMANS; SULAHUDDEEN ORDER OF SERVICE AZIM; WESTCHESTER COUNTY, Defendants.

NELSON S. ROMAN, United States District Judge: Plaintiff, who currently is incarcerated at the Westchester County Jail (“WCJ’’), brings this action, pro se, under 42 U.S.C. 1983, alleging a First Amendment retaliation claim. By order dated February 27, 2024, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.' 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 Captain George Hermans, Officer Sulahudden Azim, and Westchester County 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

' 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). ? 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 served summonses and the complaint 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.

form”) for 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 Defendants. If the complaint is not served within 90 days after the date 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 George Hermans, Sulahuddeen Azim, and Westchester County, complete the USM-285 forms with the addresses for these defendants, and deliver all documents necessary to effect service to the U.S. Marshals Service. The Clerk of Court is also instructed to mail Plaintiff an information package. 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 IFP 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: March 12, 2024 White Plains, New York NELSON S.ROMAN United States District Judge

DEFENDANTS AND SERVICE ADDRESSES

Westchester County Westchester County Attorney’s Office 148 Martine Avenue, 6th Floor White Plains, New York 10601 Captain George Hermans Westchester County Department of Correction 10 Woods Road Valhalla, NY 10595 Officer Sulahuddeen Azim Westchester County Department of Correction 10 Woods Road Valhalla, NY 10595