Terry v. The City of New York

• Court: District Court, S.D. New York
• Decided: February 3, 2020
• Docket: 1:20-cv-00081
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UsDc sDNY CHRISTOPHER TERRY, DOCUMENT ELECTRONICALLY FILED Plaintiff, DOC # DATE FILED: Feb. 3, 2020 -against- CITY OF NEW YORK; ASSISTANT DEPUTY WARDEN ELYN RIVERA, SHIELD NO. 576; SECURITY CAPTAIN JOHN HERNANDEZ, 20-CV-00081 (ER) SHIELD NO. 1806; DR. DEBRA MAYERS; PHYSICIAN’S ASSISTANT (PA) IRA ORDER OF SERVICE GORNISH; DR. TERESA CUADRA; PA HESTER MOULTON; PA BESSIE FLORES- CLEMENTE; DR. JUSTIN WILSON; PA LAURA HUNT; DR. CAROLYN DICKIE; CORRECTIONAL HEALTH SERVICES, Defendants. EDGARDO RAMOS, United States District Judge: Plaintiff, currently incarcerated at the Manhattan Detention Complex, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights. By order dated January 17, 2020, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis.' 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

' Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed in forma pauperis. See 28 U.S.C. § 1915(b)(1).

Civil Procedure generally requires that the summons and complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served the summons and complaint until the Court reviewed the complaint and ordered that a summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons is

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).”). A. Claims Against New York City Department of Correction Employees The Clerk of Court is directed to notify the New York City Department of Correction and the New York City Law Department of this order. The Court requests that the City of New York; Assistant Deputy Warden Elyn Rivera, Shield No. 576; and Security Captain John Hernandez,

Shield No. 1806 waive service of summons. B. Medical Staff To allow Plaintiff to effect service on Defendants Physician’s Assistant (PA) Ira Gornish; Dr. Teresa Cuadra; PA Hester Moulton; PA Bessie Flores-Clemente; Dr. Justin Wilson; PA Laura Hunt; Dr. Carolyn Dickie; and Correctional Health Services 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.2 The Clerk of Court is further instructed to

2 According to a New York Health + Hospitals Corp. representative, Dr. Debra Mayers is on military leave until February 2021, and H+H cannot accept service on her behalf until she issue a summons 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.

CONCLUSION The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package. The Clerk of Court is further instructed to complete the USM-285 forms with the addresses for Physician’s Assistant (PA) Ira Gornish; Dr. Teresa Cuadra; PA Hester Moulton; PA Bessie Flores-Clemente; Dr. Justin Wilson; PA Laura Hunt; Dr. Carolyn Dickie; and Correctional Health Services and deliver all documents necessary to effect service to the U.S. Marshals Service.

returns. Additionally, under the Servicemembers’ Civil Relief Act, 50 U.S.C. § 3901 et seq., Dr. Mayers may be entitled to a stay of any proceedings against her. The Court will revisit this issue at a later stage. The Clerk of Court is directed to electronically notify the New York City Department of Correction and the New York City Law Department of this order. The Court requests that Defendants City of New York; Assistant Deputy Warden Elyn Rivera, Shield No. 576; and Security Captain John Hernandez, Shield No. 1806 waive service of summons. SO ORDERED. Dated: February 3, 2020 New York, New York aL i. EDGARDORAMOS/ United States District Judge

DEFENDANTS AND SERVICE ADDRESSES

Dr. Carolyn Dickie c/o Marcella Lowe, Assistant Director of Medical Records New York City Health + Hospitals 125 Worth Street New York, NY 10013 Correctional Health Services New York City Health + Hospitals 125 Worth Street New York, NY 10013 PA Ira Gornish c/o Gwendolyn Renee Tarver PAGNY-Correctional Health Services 49-04 19th Avenue, 1st Floor Astoria, New York 11105 Dr. Theresa Cuadra c/o Gwendolyn Renee Tarver PAGNY-Correctional Health Services 49-04 19th Avenue, 1st Floor Astoria, New York 11105 PA Hester Moulton c/o Gwendolyn Renee Tarver PAGNY-Correctional Health Services 49-04 19th Avenue, 1st Floor Astoria, New York 11105 PA Bessie Flores-Clemente c/o Gwendolyn Renee Tarver PAGNY-Correctional Health Services 49-04 19th Avenue, 1st Floor Astoria, New York 11105 Dr. Justin Wilson c/o Gwendolyn Renee Tarver PAGNY-Correctional Health Services 49-04 19th Avenue, 1st Floor Astoria, New York 11105 PA Laura Hunt c/o Gwendolyn Renee Tarver PAGNY-Correctional Health Services 49-04 19th Avenue, 1st Floor Astoria, New York 11105