Lurch, Jr. v. The City of New York

Opinion

poe SSS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ROBERT DEREK LURCH, JR., Oe ee □□ Plaintiff, i □ oe. JAN 1.0 2020-1 -against- THE CITY OF NEW YORK; TWO OFFICERS FROM THE OCT. 13, 2019 1:19-CV-11253 (AJN) INCIDENT; TWO OFFICERS FROM THE NOV. 30, 2019 INCIDENT; KIMPTON ORDER OF SERVICE MUSE HOTEL; HOTEL STAFF MEMBER(S) THAT CALLED LAW ENFORCEMENT OR 911 ON PLAINTIFF ON BOTH INCIDENTS, - Defendants.

ALISON J. NATHAN, United States District Judge: Plaintiff, who appears pro se, asserts claims that the defendants violated his federal constitutional rights. He sues the City of New York, unidentified New York City police officers, the Kimpton Muse Hotel (“hotel”), and unidentified hotel staff members. By order dated January 8, 2020, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (IFP”). The Court directs service on the City of New York and the hotel. The Court also directs the Corporation Counsel of the City of New York and counsel for the hotel to provide the identities and service addresses of the unidentified to Plaintiff and the Court. DISCUSSION A. Service on the City of New York and the hotel 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. See 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 summonses and the complaint on the City of New York and the hotel until the Court reviewed the complaint and ordered that summonses be issued for those defendants. The Court therefore extends the time

to serve the City of New York and the hotel until 90 days after the date that summonses for those

defendants are issued. If the complaint is not served on those defendants 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 plaintiff's responsibility to request an extension of time for

service); see also Murray v. Pataki, 378 F. App’x 50, 52 (2d Cir. 2010) (summary order) (“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 the City of New York and the hotel 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 those defendants. The Clerk of Court is

further instructed to issue summonses for the City of New York and the hotel, and deliver to the

Marshals Service all of the paperwork necessary for the Marshals Service to effect service on

those defendants. Plaintiff must notify the Court if his address changes, and the Court may dismiss this

action if Plaintiff fails to do so.

B. The unidentified defendants Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court

in identifying an unidentified defendant and a defendant’s service address. 121 F.3d 72, 76 (2d Cir, 1997). In the complaint, Plaintiff supplies sufficient information to permit the New York

City Police Department (“NYPD”) and the hotel to provide the identities (including badge numbers, if applicable) and service addresses of the unidentified defendants. The unidentified defendants include (1) those NYPD officers who, on October 13, 2019, and on November 30, 2019, directed Plaintiff to leave the hotel, and (2) those hotel staff members who alerted the

NYPD about Plaintiffs presence in the hotel on those dates. It is therefore ordered that the

Corporation Counsel of the City of New York, who is the attorney for and agent of the NYPD, as

well as counsel for the hotel, must ascertain the identities (and badge numbers, if applicable) of

the unidentified defendants who Plaintiff seeks to sue here, as well as the addresses where they

may be served. The Corporation Counsel and counsel for the hotel must provide this information

to Plaintiff and the Court within sixty days of the date of this order. Within thirty days of receiving this information, Plaintiff must file an amended complaint naming the newly identified defendants and listing all of those defendants’ service addresses.

The amended complaint will replace, not supplement, the original complaint. An amended

complaint form that Plaintiff should complete is attached to this order. Once Plaintiff has filed an

amended complaint, the Court will screen the amended complaint and, if necessary, issue an

order directing service on the newly named defendants. CONCLUSION The Court directs the Clerk of Court to mail a copy of this order to Plaintiff, together with

an information package.

The Court also directs the Clerk of Court to complete USM-285 forms with the service addresses for the City of New York and the Kimpton Muse Hotel, and deliver all documents

necessary to effect service on those defendants to the U.S. Marshals Service. The Court further directs the Clerk of Court to mail a copy of this order and the complaint to (1) the Corporation Counsel of the City of New York at 100 Church Street, New York, New York 10007, and (2) the Kimpton Muse Hotel at 130 West 46th Street, New York, New York 10036. An amended complaint form is attached to this order. 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: January 2020 New York, New York Ul ay VV ALISON J. NATHAN United States District Judge

DEFENDANTS AND SERVICE ADDRESSES 1. City of New York Law Department 100 Church Street New York, New York 10007 2. Kimpton Muse Hotel 130 West 46th Street New York, New York 10036

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

CV

(include case number if one has been Write the full name of each plaintiff. assigned)

-against- AMENDED

COMPLAINT —— Do you want a jury trial? ClYes ONo

Write the full name of each defendant. If you need more space, 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 Il.

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; ora 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.

Rev. 2/10/17

I. BASIS FOR JURISDICTION Federal courts are courts of limited jurisdiction (limited power), Generally, only two types of cases can be heard in federal court: cases involving a federal question and cases involving diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332, a case in which a citizen of one State sues a citizen of another State or nation, and the amount in controversy is more than $75,000, is a diversity case. Ina diversity case, no defendant may be a citizen of the same State as any plaintiff. What is the basis for federal-court jurisdiction in your case? (] Federal Question (1) Diversity of Citizenship A. If you checked Federal Question Which of your federal constitutional or federal statutory rights have been violated?

ee B. If you checked Diversity of Citizenship 1. Citizenship of the parties Of what State is each party a citizen? The plaintiff , , is a citizen of the State of (Plaintiff's name)

(State in which the person resides and intends to remain.)

ot, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of

If more than one plaintiff is named in the complaint, attach additional pages providing information for each additional plaintiff.

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if the defendant is an individual: The defendant, , is a citizen of the State of (Defendant’s name)

or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of

If the defendant is a corporation: The defendant, , is incorporated under the laws of the State of and has its principal place of business in the State of or is incorporated under the laws of (foreign state) and has its principal place of business in If more than one defendant is named in the complaint, attach additional pages providing information for each additional defendant.

Il. PARTIES

A. Plaintiff Information Provide the following information for each plaintiff named in the complaint. Attach additional pages if needed.

First Name Middle Initial Last Name

Street Address

County, City State Zip Code

Telephone Number Email Address (if available)

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B. Defendant Information To the best of your ability, provide addresses where each defendant may be served. 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 the same as those listed in the caption. Attach additional pages if needed. Defendant 1: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served) ee County, City State Zip Code

Defendant 2: _ First Name Last Name ee Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code

Defendant 3: _ First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code

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Defendant 4: First Name Last Name Current Job Title (or other identifying information) ee Current Work Address (or other address where defendant may be served) ee County, City State Zip Code Ill. 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 what each defendant personally did or failed to do that harmed you. Attach additional pages if needed.

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

IV, RELIEF State briefly what money damages or other relief you want the court to order.

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V. 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. L agree to notify the Clerk's Office in writing of any changes to my mailing 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

First Name Middle Initial Last Name

Street Address

County, City State Zip Code

Telephone Number Email Address (if available)

I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically: OYes ONo If you do consent to receive documents electronically, submit the completed form with your complaint. If you do not consent, please do not attach the form.

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