Morrow v. Janis

Opinion

USDC SDNY DOCUMENT UNITED STATES DISTRICT COURT ELECTRONICALLY FILED SOUTHERN DISTRICT OF NEW YORK DOC #: - 11/09/2023 NEB MORROW, DATE FILED: Plaintiff, 23-CV-3224 (NSR) -against- ORDER OF SERVICE MARC JANIS, Defendant. NELSON S. ROMAN, United States District Judge: Plaintiff, who currently is incarcerated at Sing Sing Correctional Facility, brings this action, pro se, under 42 U.S.C. § 1983, alleging that Defendant Marc Janis was deliberately indifferent to his pain when he conducted a prostate biopsy. By order dated July 17, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.! DISCUSSION 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)).

' 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 the summons and the second amended complaint until the Court reviewed the complaint and ordered that the summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons 1s issued.

To allow Plaintiff to effect service on Defendant Marc Janis 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 this defendant. 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 Defendant. If the complaint is not served within 90 days after the date the summons is 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 a summons as to Defendant Marc Janis, complete the USM-285 form with the address for this defendant, and deliver all documents necessary to effect service to the U.S. Marshals Service. The Clerk of Court is further instructed to mail a copy of this order and an information package to Plaintiff at the address listed on ECF and to show service on the docket. SO ORDERED. Dated: November 9, 2023 White Plains, New York NELSON S.ROMAN United States District Judge

DEFENDANT AND SERVICE ADDRESS Marc Janis, MD 105 Stevens Ave. Suite 109 Mount Vernon, NY 10550