McFadden v. Keyser

Opinion

DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK DATE FILED: 10/6/2023 ROBERT McFADDEN, Plaintiff, -against- SUPERINTENDENT WILLIAM KEYSER; DEPUTY SUPERINTENDENT OF SECURITY GARY SIPPLE; CAPTAIN KENNETH LETUS; SERGEANT LISA WILSON; SERGEANT RONALD MILLER; FOOD SERVICES ADMINISTRATOR ANTHONY RIZZUTO; HEAD COOK JOHN PAPAVASILOU; COOK 23-CV-802 (NSR) ANTHONY CARMINATI; INMATE GRIEVANCE PROGRAM SUPERVISOR See SORVICE CORY PROSCIA; HEAD CHAPLIN OGBONNA STAINISLAUS; NURSE KATHLEEN BUTTLES; C.O. WILLIAM ELBERTH; C.0. EDMUND PUERSCHNER; C.0. MARK PUERSHNER; C.O. TIMOTHY DOEINCK; C.O. OFFICER KINNE; C.O. RYAN SOUTHARD; C.O. PAUL HOLLAND; STEVE RYDER; C.O. GEORGE GILMOUR, SR.; HEARING OFFICER MORROW, Defendants.

NELSON S. ROMAN, United States District Judge: Plaintiff, who is currently incarcerated in the Mid-State Correctional Facility, brings this pro se action under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act, regarding events that allegedly occurred at the Sullivan Correctional Facility, between 2019 and 2022. By order dated February 1, 2023, 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

To allow Plaintiff to effect service on Defendants Superintendent William Keyser, Deputy Superintendent of Security Gary Sipple, Captain Kenneth Letus, Food Services Administrator Anthony Rizzuto, Nurse Kathleen Buttles, Correctional Officer (“C.O”) William Elberth, C.O. Edmund Puerschner, C.O. Mark Puerschner, and C.O. George Gilmour, Sr. 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.23 The Clerk of Court is further instructed to issue summonses for each of these defendants and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon each of 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 Clerk of Court is instructed to (1) issue summonses for Defendants Superintendent William Keyser, Deputy Superintendent of Security Gary Sipple, Captain Kenneth Letus, Food Services Administrator Anthony Rizzuto, Nurse Kathleen Buttles, C.O. William Elberth, C.O.

Edmund Puerschner, C.O. Mark Puerschner, and C.O. George Gilmour, Sr., (2) complete the

. . . 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)). 2 The New York State Attorney General (“NYAG”) observed that the U.S. Marshals Service’s previous attempt to serve Defendants at Sullivan Correction Facility was not accepted “due to miscommunication within the facility.” (ECF No. 42.) NYAG informs the Court that “this miscommunication has been remedied and that future service upon these individuals by Sullivan Correctional Facility will be accepted.” (Id.) NYAG also informs the Court that Defendant Keyser, though retired, can be served at the address listed in this Order. (Id.) 3 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). USM-285 forms with the addresses for each of these defendants, and (3) deliver all documents necessary to effect service on each of these defendants to the U.S. Marshals Service. The Clerk of Court is kindly directed to mail a copy of this Order to pro se Plaintiff at Plaintiff’s address listed on ECF and to show service on the docket. SO ORDERED. Dated: October 6, 2023 White Plains, New York NELSON S.ROMAN United States District Judge

DEFENDANTS AND SERVICE ADDRESSES Superintendent William Keyser Department of Corrections and Community Supervision, C/O Office of Counsel The Harriman State Campus, Building 4 1220 Washington Avenue, Albany, New York, 12226

Deputy Superintendent of Security Gary Sipple Sullivan Correctional Facility 325 Riverside Drive P.O Box 116 Fallsburg, N.Y. 12733-0116 Captain Kenneth Letus Sullivan Correctional Facility 325 Riverside Drive P.O Box 116 Fallsburg, N.Y. 12733-0116 Food Services Administrator Anthony Rizzuto Sullivan Correctional Facility 325 Riverside Drive P.O Box 116 Fallsburg, N.Y. 12733-0116 Nurse Kathleen Buttles Sullivan Correctional Facility 325 Riverside Drive P.O Box 116 Fallsburg, N.Y. 12733-0116 C.O. William Elberth Sullivan Correctional Facility 325 Riverside Drive P.O Box 116 Fallsburg, N.Y. 12733-0116 C.O. Edmund Puerschner Sullivan Correctional Facility 325 Riverside Drive P.O Box 116 Fallsburg, N.Y. 12733-0116 C.O. Mark Puerschner Sullivan Correctional Facility 325 Riverside Drive P.O Box 116 Fallsburg, N.Y. 12733-0116 C.O. George Gilmour, Sr. Sullivan Correctional Facility 325 Riverside Drive P.O Box 116 Fallsburg, N.Y. 12733-0116