SUNY DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK DATE FILED: 8/17/2020 _ JUAN PENA Plaintiff, -against- 7:19-CV-7336 (NSR) JANE DOE, M.D.; ROBERT MORTON, IR., ORDER OF SERVICE Superintendent, Downstate Correctional Facility, Defendants. NELSON S. ROMAN, United States District Judge: Plaintiff Juan Pena, who is currently incarcerated in the Bare Hill Correctional Facility, appears pro se and asserts claims that the defendants violated his federal constitutional rights. He seeks damages, and sues (1) Robert Morton, Jr., the Superintendent of the Downstate Correctional Facility, and (2) “Jane Doe, M.D.,” an unidentified female physician employed at Downstate. The Court construes Plaintiff’s second amended complaint as asserting claims under 42 US.C. § 1983. By order dated February 3, 2020, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”).' The Court directs service on Defendant Morton, and directs the Attorney General of the State of New York to provide Plaintiff and the Court with the identity and service address of Defendant “Jane Doe, M.D.” DISCUSSION A. Service on Defendant Morton As 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
' 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).
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 a summons and the complaint be served within 90 days of
the date the complaint is filed, Plaintiff is proceeding IFP and could not have served a summons and the second amended complaint on Defendant Morton until the Court reviewed the second amended complaint and ordered that a summons be issued for Defendant Morton. The Court therefore extends the time to serve Defendant Morton until 90 days after the date that a summons is issued for him. If the second amended complaint is not served on Defendant Morton 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 Defendant Morton 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 Defendant Morton. The Clerk of Court is further instructed to issue a summons for Defendant Morton, and deliver to the Marshals Service all of the paperwork necessary for the Marshals Service to effect service on Defendant Morton. Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss this action if Plaintiff fails to do so. B. Defendant “Jane Doe, M.D.” 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 second amended complaint, Plaintiff supplies sufficient information to permit the New York State Department of Corrections and Community Supervision (“DOCCS”) to identify Defendant “Jane Doe, M.D.” –
a female physician employed by DOCCS at the Downstate Correctional Facility who conducted a physical examination of Plaintiff in that facility during April 2019 or June 2019, in course of conducting a medical assessment of Plaintiff. 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 Defendant “Jane Doe, M.D.,” and the address where she may be served. The Attorney General 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 a third amended complaint in which he names the newly identified defendant. The third amended complaint will replace, not supplement, Plaintiff’s original, amended, and second amended complaints. A third
amended complaint form that Plaintiff should complete is attached to this order. Once Plaintiff has filed a third amended complaint, the Court will screen it and, if necessary, issue an order directing the Clerk of Court to complete a USM-285 form with the address for the newly identified defendant and deliver all documents necessary to effect service on her to the U.S. Marshals Service. 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 (1) issue a summons for Defendant Morton, (2) complete a USM-285 form with the service address for Defendant Morton, (3) and deliver all documents necessary to effect service on Defendant Morton to the U.S. Marshals Service. The Court further directs the Clerk of Court to mail a copy of this order and the second
amended complaint to the Attorney General of the State of New York at 28 Liberty Street, New York, New York 10005. A third 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: August 17, 2020 White Plains, New York
NELSON S. ROMÁN United States District Judge DEFENDANT AND SERVICE ADDRESS Robert Morton, Jr., Superintendent Downstate Correctional Facility 121 Red Schoolhouse Road P.O. Box 445 Fishkill, New York 12524-0445 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) THIRD AMENDED against: COMPLAINT (Prisoner) Do you want a jury trial? 0mNd—MN L1Yes LINo
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.
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SUNY DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK DATE FILED: 8/17/2020 _ JUAN PENA Plaintiff, -against- 7:19-CV-7336 (NSR) JANE DOE, M.D.; ROBERT MORTON, IR., ORDER OF SERVICE Superintendent, Downstate Correctional Facility, Defendants. NELSON S. ROMAN, United States District Judge: Plaintiff Juan Pena, who is currently incarcerated in the Bare Hill Correctional Facility, appears pro se and asserts claims that the defendants violated his federal constitutional rights. He seeks damages, and sues (1) Robert Morton, Jr., the Superintendent of the Downstate Correctional Facility, and (2) “Jane Doe, M.D.,” an unidentified female physician employed at Downstate. The Court construes Plaintiff’s second amended complaint as asserting claims under 42 US.C. § 1983. By order dated February 3, 2020, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”).' The Court directs service on Defendant Morton, and directs the Attorney General of the State of New York to provide Plaintiff and the Court with the identity and service address of Defendant “Jane Doe, M.D.” DISCUSSION A. Service on Defendant Morton As 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
' 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).
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 a summons and the complaint be served within 90 days of
the date the complaint is filed, Plaintiff is proceeding IFP and could not have served a summons and the second amended complaint on Defendant Morton until the Court reviewed the second amended complaint and ordered that a summons be issued for Defendant Morton. The Court therefore extends the time to serve Defendant Morton until 90 days after the date that a summons is issued for him. If the second amended complaint is not served on Defendant Morton 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 Defendant Morton 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 Defendant Morton. The Clerk of Court is further instructed to issue a summons for Defendant Morton, and deliver to the Marshals Service all of the paperwork necessary for the Marshals Service to effect service on Defendant Morton. Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss this action if Plaintiff fails to do so. B. Defendant “Jane Doe, M.D.” 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 second amended complaint, Plaintiff supplies sufficient information to permit the New York State Department of Corrections and Community Supervision (“DOCCS”) to identify Defendant “Jane Doe, M.D.” –
a female physician employed by DOCCS at the Downstate Correctional Facility who conducted a physical examination of Plaintiff in that facility during April 2019 or June 2019, in course of conducting a medical assessment of Plaintiff. 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 Defendant “Jane Doe, M.D.,” and the address where she may be served. The Attorney General 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 a third amended complaint in which he names the newly identified defendant. The third amended complaint will replace, not supplement, Plaintiff’s original, amended, and second amended complaints. A third
amended complaint form that Plaintiff should complete is attached to this order. Once Plaintiff has filed a third amended complaint, the Court will screen it and, if necessary, issue an order directing the Clerk of Court to complete a USM-285 form with the address for the newly identified defendant and deliver all documents necessary to effect service on her to the U.S. Marshals Service. 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 (1) issue a summons for Defendant Morton, (2) complete a USM-285 form with the service address for Defendant Morton, (3) and deliver all documents necessary to effect service on Defendant Morton to the U.S. Marshals Service. The Court further directs the Clerk of Court to mail a copy of this order and the second
amended complaint to the Attorney General of the State of New York at 28 Liberty Street, New York, New York 10005. A third 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: August 17, 2020 White Plains, New York
NELSON S. ROMÁN United States District Judge DEFENDANT AND SERVICE ADDRESS Robert Morton, Jr., Superintendent Downstate Correctional Facility 121 Red Schoolhouse Road P.O. Box 445 Fishkill, New York 12524-0445 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) THIRD AMENDED against: COMPLAINT (Prisoner) Do you want a jury trial? 0mNd—MN L1Yes LINo
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.
Rev. 5/20/16
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 ina “Bivens” action (against federal defendants). L] Violation of my federal constitutional rights L] Other: Il. 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 II. PRISONER STATUS Indicate below whether you are a prisoner or other confined person: L] Pretrial detainee L] Civilly committed detainee L] Immigration detainee L] Convicted and sentenced prisoner L] 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 # Current Job Title (or other identifying information) Current Work Address County, City State Zip Code Defendant 3: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address
County, City State Zip Code Defendant 4: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address 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
First Name Middle Initial Last Name
Prison Address
County, City State Zip Code
Date on which I am delivering this complaint to prison authorities for mailing: