UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MICHAEL D. SILER, Plaintiff,
-against- ORDER OF SERVICE OFFICER MONROE; OFFICER JOHN DOE; 20-CV-5794 (PMH) OFFICER J. WALDEN; SUPERINTENDENT LEROY FIELDS; ACTING COMMISSIONER
OF NYSDOCCS, ANTHONY J. ANNUCCI, Defendants. PHILIP M. HALPERN, United States District Judge: Plaintiff, currently incarcerated in Southport Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his rights under the First and Eighth Amendments by retaliating against him for his filing of grievances, using excessive force against him, and being deliberately indifferent to his health and safety. The alleged violations occurred while he was confined in Fishkill Correctional Facility. By order dated August 19, 2020, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (IFP).1 DISCUSSION A. Service on Named Defendants 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)). Although Rule 4(m) of the Federal Rules of Civil
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). Procedure generally requires that summonses 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 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 summonses are issued. If the
complaint is not served 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) (“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 Defendants Officer J. Walden, Superintendent Leroy Fields, and Acting Commissioner of the New York State Department of Corrections and Community Supervision (“NYSDOCS”) Anthony J. Annucci 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. The Clerk of Court is instructed further to issue summonses and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon 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. B. Identification of Officer Monroe and John Doe Defendant Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the complaint, Plaintiff supplies sufficient information to permit the Attorney General of the State of New York to identify Officer Monroe and the John Doe correction officer who were involved in the alleged incidents Plaintiff describes. It is therefore ordered that the Attorney General, who is the attorney for and agent of NYSDOCS, must ascertain the identities of Officer Monroe and the John Doe whom Plaintiff seeks to sue here and the addresses where those Defendants 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 an amended complaint with the full names of Officer Monroe and the John Doe correction officer. 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 the Clerk of Court to complete the USM-285 forms with the addresses for the named Defendants and deliver all documents necessary to effect service to the U.S. Marshals Service. C. Local Civil Rule 33.2 Local Civil Rule 33.2, which requires defendants in certain types of prisoner cases to respond to specific, court-ordered discovery requests, applies to this action. Those discovery requests are available on the Court’s website under “Forms” and are titled “Plaintiff’s Local Civil
Rule 33.2 Interrogatories and Requests for Production of Documents.” Within 120 days of service of the complaint, Defendants must serve responses to these standard discovery requests. In the responses, Defendants must quote each request verbatim.2
CONCLUSION The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package.
2 If Plaintiff would like copies of these discovery requests before receiving the responses and does not have access to the website, Plaintiff may request them from the Pro Se Intake Unit. The Clerk of Court is also directed to complete the USM-285 forms with the addresses for Walden, Fields, and Annucci, issue summonses, 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 the complaint to
the Attorney General of the State of New York at: 28 Liberty Street, New York, NY 10005. An “Amended Complaint” form is attached to this order. Local Civil Rule 33.2 applies to this action. Within 120 days of service of the complaint, Defendants must serve responses to these standard discovery requests. In his responses, Defendants must quote each request verbatim. SO ORDERED. Dated: August 28, 2020 New York, New York
PHILIP M. HALPERN United States District Judge DEFENDANTS AND SERVICE ADDRESSES J. Walden, Correction Officer Fishkill Correctional Facility 18 Strack Drive Beacon, NY 12508 Leroy Fields, Superintendent Fishkill Correctional Facility 18 Strack Drive Beacon, NY 12508 Anthony Annucci, Acting Commissioner of NYSDOCCS 1220 Washington Ave., Building 2 Albany, New York 12226-2050 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
CVE Write the full name of each plaintiff. (Include case number if one has been assigned)
“against- COMPLAINT (Prisoner) Do you want a jury trial? ssssssss...0.0.0. 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.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MICHAEL D. SILER, Plaintiff,
-against- ORDER OF SERVICE OFFICER MONROE; OFFICER JOHN DOE; 20-CV-5794 (PMH) OFFICER J. WALDEN; SUPERINTENDENT LEROY FIELDS; ACTING COMMISSIONER
OF NYSDOCCS, ANTHONY J. ANNUCCI, Defendants. PHILIP M. HALPERN, United States District Judge: Plaintiff, currently incarcerated in Southport Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his rights under the First and Eighth Amendments by retaliating against him for his filing of grievances, using excessive force against him, and being deliberately indifferent to his health and safety. The alleged violations occurred while he was confined in Fishkill Correctional Facility. By order dated August 19, 2020, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (IFP).1 DISCUSSION A. Service on Named Defendants 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)). Although Rule 4(m) of the Federal Rules of Civil
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). Procedure generally requires that summonses 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 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 summonses are issued. If the
complaint is not served 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) (“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 Defendants Officer J. Walden, Superintendent Leroy Fields, and Acting Commissioner of the New York State Department of Corrections and Community Supervision (“NYSDOCS”) Anthony J. Annucci 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. The Clerk of Court is instructed further to issue summonses and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon 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. B. Identification of Officer Monroe and John Doe Defendant Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the complaint, Plaintiff supplies sufficient information to permit the Attorney General of the State of New York to identify Officer Monroe and the John Doe correction officer who were involved in the alleged incidents Plaintiff describes. It is therefore ordered that the Attorney General, who is the attorney for and agent of NYSDOCS, must ascertain the identities of Officer Monroe and the John Doe whom Plaintiff seeks to sue here and the addresses where those Defendants 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 an amended complaint with the full names of Officer Monroe and the John Doe correction officer. 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 the Clerk of Court to complete the USM-285 forms with the addresses for the named Defendants and deliver all documents necessary to effect service to the U.S. Marshals Service. C. Local Civil Rule 33.2 Local Civil Rule 33.2, which requires defendants in certain types of prisoner cases to respond to specific, court-ordered discovery requests, applies to this action. Those discovery requests are available on the Court’s website under “Forms” and are titled “Plaintiff’s Local Civil
Rule 33.2 Interrogatories and Requests for Production of Documents.” Within 120 days of service of the complaint, Defendants must serve responses to these standard discovery requests. In the responses, Defendants must quote each request verbatim.2
CONCLUSION The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package.
2 If Plaintiff would like copies of these discovery requests before receiving the responses and does not have access to the website, Plaintiff may request them from the Pro Se Intake Unit. The Clerk of Court is also directed to complete the USM-285 forms with the addresses for Walden, Fields, and Annucci, issue summonses, 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 the complaint to
the Attorney General of the State of New York at: 28 Liberty Street, New York, NY 10005. An “Amended Complaint” form is attached to this order. Local Civil Rule 33.2 applies to this action. Within 120 days of service of the complaint, Defendants must serve responses to these standard discovery requests. In his responses, Defendants must quote each request verbatim. SO ORDERED. Dated: August 28, 2020 New York, New York
PHILIP M. HALPERN United States District Judge DEFENDANTS AND SERVICE ADDRESSES J. Walden, Correction Officer Fishkill Correctional Facility 18 Strack Drive Beacon, NY 12508 Leroy Fields, Superintendent Fishkill Correctional Facility 18 Strack Drive Beacon, NY 12508 Anthony Annucci, Acting Commissioner of NYSDOCCS 1220 Washington Ave., Building 2 Albany, New York 12226-2050 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
CVE Write the full name of each plaintiff. (Include case number if one has been assigned)
“against- COMPLAINT (Prisoner) Do you want a jury trial? ssssssss...0.0.0. 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: II. 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 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 #
County, City State Zip Code Defendant 4: First Name Last Name Shield #
County, City State Zip Code
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 anonfrivolous 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
Prison Address
Date on which | am delivering this complaint to prison authorities for mailing: