UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SHARIF WHITTY, Plaintiff, 7:26-CV-4435 (JGLC) -against- ORDER OF SERVICE DANIEL F. MARTUSCELLO III, Commissioner of DOCCS, et al., Defendants. JESSICA G. L. CLARKE, United States District Judge: Plaintiff Sharif Whitty, who is currently incarcerated in the Wende Correctional Facility (“Wende”), brings this pro se action under 42 U.S.C. § 1983 and Title II of the Americans with Disabilities Act of 1990 (“ADA”), seeking unspecified relief. He sues: (1) Daniel F. Martuscello III, the Commissioner of the New York State Department of Corrections and Community Supervision (“DOCCS”); (2) Besty Smith, the Superintendent of the Woodbourne Correctional Facility (“Woodbourne”); (3) A. LaForge, a Woodbourne Offender Rehabilitation Counselor; (4) C. Iral, a Woodbourne Deputy Superintendent of Programs; and (5) Woodbourne Deputy Superintendent of Programs Glebocki. The Court construes the complaint as asserting claims of federal constitutional violations under Section 1983 against the individual Defendants, as well as claims of disability discrimination against the State of New York (and/or against the individual Defendants in their official capacities) under Title II of the ADA and the Rehabilitation Act of 1973 (“RA”). In addition, the Court construes the complaint as asserting claims of disability discrimination under the New York State Human Rights Law. By order dated June 3, 2026, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”).1 For the reasons set forth below, the Court 0F adds the State of New York as a Defendant in this action, under Rule 21 of the Federal Rules of Civil Procedure (“Rule 21”). The Court directs service on all of the Defendants, including the State of New York. DISCUSSION A. The State of New York Under Rule 21, the Court, on its own motion, “may[,] at any time, on just terms, add or drop a party.” Fed. R. Civ. P. 21; see Anwar v. Fairfield Greenwich, Ltd., 118 F. Supp. 3d 591, 618-19 (S.D.N.Y. 2015) (Marrero, D.J.) (Rule 21 “afford[s] courts discretion to shape litigation in the interests of efficiency and justice.”). “In pro se actions, courts can and have, under Rule 21, . . . add[ed] the proper institutional defendant.” Hayes v. Westchester Med. Ctr., 7:25-CV- 10273 (NSR), 2026 WL 412121, at *1 (S.D.N.Y. Feb. 13, 2026). This reflects the intent of Rule 21. See Truncale v. Universal Pictures Co., 82 F. Supp. 576, 578 (S.D.N.Y. 1949) (Kaufman, D.J.) (“In so far as [Rule 21] relates to the addition of parties, it is intended to permit the bringing
in of a person who, through inadvertence, mistake or for some other reason, had not been made a party and whose presence as a party is later found necessary or desirable.”). Plaintiff does not specify the relief he seeks, but he is clear that he filed his complaint while incarcerated at Wende, after having been transferred from Woodbourne. (ECF 1, at 8.) Thus, because any injunctive relief that Plaintiff could have sought with regard to his Woodbourne incarceration has likely been mooted, and because this action involves events
1 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). alleged to have occurred at Woodbourne, the Court construes Plaintiff’s complaint as seeking damages. To the extent that Plaintiff seeks damages under Title II of the ADA and the RA, it seems that an appropriate Defendant for such claims is the State of New York. See Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 112 (2d Cir. 2001) (discussion in the context
of Title II of the ADA); see generally Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003) (“[A]lthough there are subtle differences between these [statutes], the standards adopted by Title II of the ADA . . . are generally the same as those required under [the RA] . . . . [U]nless one of those subtle distinctions is pertinent to a particular case, we treat claims under the two statutes identically.”). Accordingly, the Court adds the State of New York as a Defendant in this action, under Rule 21. The addition of the State of New York as a Defendant in this action is without prejudice to any defenses that the State of New York may assert in this action. B. Service on the Defendants Because Plaintiff has been granted permission to proceed IFP, he is entitled to rely on the assistance of the court and the United States Marshals Service (“USMS”) to effect service.2 1F Walker v. Schult, 717 F.3d. 119, 123 n.6 (2d Cir. 2013); see also 28 U.S.C. § 1915(d) (“The
2 Although Rule 4(m) of the Federal Rules of Civil Procedure (“Rule 4(m)”) generally requires that a summons and the complaint be served within 90 days of the date that the complaint is filed, Plaintiff is proceeding IFP and could not have served summonses and the complaint on the Defendants 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 that the summonses for the Defendants are issued. If the summonses and the complaint are not served on the Defendants within 90 days from the date that 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); 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).”). 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 USMS to serve if the plaintiff is authorized to proceed IFP). To allow Plaintiff to effect service on the Defendants (the State of New York, Martuscello, Smith, LaForge, Iral, and Glebokci) through the USMS, the Clerk of Court is
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SHARIF WHITTY, Plaintiff, 7:26-CV-4435 (JGLC) -against- ORDER OF SERVICE DANIEL F. MARTUSCELLO III, Commissioner of DOCCS, et al., Defendants. JESSICA G. L. CLARKE, United States District Judge: Plaintiff Sharif Whitty, who is currently incarcerated in the Wende Correctional Facility (“Wende”), brings this pro se action under 42 U.S.C. § 1983 and Title II of the Americans with Disabilities Act of 1990 (“ADA”), seeking unspecified relief. He sues: (1) Daniel F. Martuscello III, the Commissioner of the New York State Department of Corrections and Community Supervision (“DOCCS”); (2) Besty Smith, the Superintendent of the Woodbourne Correctional Facility (“Woodbourne”); (3) A. LaForge, a Woodbourne Offender Rehabilitation Counselor; (4) C. Iral, a Woodbourne Deputy Superintendent of Programs; and (5) Woodbourne Deputy Superintendent of Programs Glebocki. The Court construes the complaint as asserting claims of federal constitutional violations under Section 1983 against the individual Defendants, as well as claims of disability discrimination against the State of New York (and/or against the individual Defendants in their official capacities) under Title II of the ADA and the Rehabilitation Act of 1973 (“RA”). In addition, the Court construes the complaint as asserting claims of disability discrimination under the New York State Human Rights Law. By order dated June 3, 2026, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”).1 For the reasons set forth below, the Court 0F adds the State of New York as a Defendant in this action, under Rule 21 of the Federal Rules of Civil Procedure (“Rule 21”). The Court directs service on all of the Defendants, including the State of New York. DISCUSSION A. The State of New York Under Rule 21, the Court, on its own motion, “may[,] at any time, on just terms, add or drop a party.” Fed. R. Civ. P. 21; see Anwar v. Fairfield Greenwich, Ltd., 118 F. Supp. 3d 591, 618-19 (S.D.N.Y. 2015) (Marrero, D.J.) (Rule 21 “afford[s] courts discretion to shape litigation in the interests of efficiency and justice.”). “In pro se actions, courts can and have, under Rule 21, . . . add[ed] the proper institutional defendant.” Hayes v. Westchester Med. Ctr., 7:25-CV- 10273 (NSR), 2026 WL 412121, at *1 (S.D.N.Y. Feb. 13, 2026). This reflects the intent of Rule 21. See Truncale v. Universal Pictures Co., 82 F. Supp. 576, 578 (S.D.N.Y. 1949) (Kaufman, D.J.) (“In so far as [Rule 21] relates to the addition of parties, it is intended to permit the bringing
in of a person who, through inadvertence, mistake or for some other reason, had not been made a party and whose presence as a party is later found necessary or desirable.”). Plaintiff does not specify the relief he seeks, but he is clear that he filed his complaint while incarcerated at Wende, after having been transferred from Woodbourne. (ECF 1, at 8.) Thus, because any injunctive relief that Plaintiff could have sought with regard to his Woodbourne incarceration has likely been mooted, and because this action involves events
1 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). alleged to have occurred at Woodbourne, the Court construes Plaintiff’s complaint as seeking damages. To the extent that Plaintiff seeks damages under Title II of the ADA and the RA, it seems that an appropriate Defendant for such claims is the State of New York. See Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 112 (2d Cir. 2001) (discussion in the context
of Title II of the ADA); see generally Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003) (“[A]lthough there are subtle differences between these [statutes], the standards adopted by Title II of the ADA . . . are generally the same as those required under [the RA] . . . . [U]nless one of those subtle distinctions is pertinent to a particular case, we treat claims under the two statutes identically.”). Accordingly, the Court adds the State of New York as a Defendant in this action, under Rule 21. The addition of the State of New York as a Defendant in this action is without prejudice to any defenses that the State of New York may assert in this action. B. Service on the Defendants Because Plaintiff has been granted permission to proceed IFP, he is entitled to rely on the assistance of the court and the United States Marshals Service (“USMS”) to effect service.2 1F Walker v. Schult, 717 F.3d. 119, 123 n.6 (2d Cir. 2013); see also 28 U.S.C. § 1915(d) (“The
2 Although Rule 4(m) of the Federal Rules of Civil Procedure (“Rule 4(m)”) generally requires that a summons and the complaint be served within 90 days of the date that the complaint is filed, Plaintiff is proceeding IFP and could not have served summonses and the complaint on the Defendants 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 that the summonses for the Defendants are issued. If the summonses and the complaint are not served on the Defendants within 90 days from the date that 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); 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).”). 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 USMS to serve if the plaintiff is authorized to proceed IFP). To allow Plaintiff to effect service on the Defendants (the State of New York, Martuscello, Smith, LaForge, Iral, and Glebokci) through the USMS, the Clerk of Court is
instructed to fill out a USMS Process Receipt and Return form (“USM-285 form”) for each Defendant (the State of New York, Martuscello, Smith, LaForge, Iral, and Glebokci). The Clerk of Court is further instructed to issue a summons for each Defendant and to deliver to the USMS all the paperwork necessary for the USMS to effect service of a summons and the complaint on each Defendant. Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if he fails to do so. C. City Bar Justice Center Plaintiff is advised that there is a Pro Se Law Clinic available to assist self-represented parties in civil cases. The Clinic may be able to assist Plaintiff with amending his complaint. The Clinic is run by a private organization called the City Bar Justice Center (“CBJC”); it is not part
of, or run by, the court. An informational flyer and a limited scope legal assistance retainer agreement are attached to this order. CONCLUSION The Court directs the Clerk of Court to mail an information package to Plaintiff. The Court also directs the Clerk of Court to add the State of New York as a Defendant. See Fed. R. Civ. 21. The Court further directs the Clerk of Court issue a summons for each Defendant (the State of New York, Martuscello, Smith, LaForge, Iral, and Glebokci), complete a USM-285 form with the service address for each Defendant (the State of New York, Martuscello, Smith, LaForge, Iral, and Glebokc1), and deliver all documents necessary to effect service of a summons and the complaint on each of the Defendants to the USMS. SO ORDERED. Dated: July 27, 2026 White Plains, New York C je sica Lb ane JESSICA G. L. CLARKE United States District Judge
SERVICE ADDRESS FOR EACH DEFENDANT
State of New York Office of the New York State Attorney General 28 Liberty Street, 16th Floor New York, New York 10005 Daniel F. Martuscello III, Commissioner New York State Department of Corrections and Community Supervision Harriman State Campus 1220 Washington Avenue, Bldg. 4 Albany, New York 12226 Betsy Smith, Superintendent Woodbourne Correctional Facility 99 Prison Road P.O. Box 1000 Woodbourne, New York 12788-1000 A. LaForge, Offender Rehabilitation Counselor Woodbourne Correctional Facility 99 Prison Road P.O. Box 1000 Woodbourne, New York 12788-1000 C. Iral, Deputy Superintendent Woodbourne Correctional Facility 99 Prison Road P.O. Box 1000 Woodbourne, New York 12788-1000 Deputy Superintendent Glebocki Woodbourne Correctional Facility 99 Prison Road P.O. Box 1000 Woodbourne, New York 12788-1000 (CUDA LORS □□□□ aakometolehaal-1gam ceme) iN (-a)'am Ae) aes DIN DG) Ce NSEAS
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