Washington v. Balletto

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DEXTER WASHINGTON, Plaintiff, -against- 19-CV-11949 (CS) DANIEL J. BALLETTO, TROOPER; RAY A. ORDER OF SERVICE WICKENHEISER, DIRECTOR; RACHEAL STUBBS, SCIENTIST III; MICHAEL A. JANKOWIAK, CAPTAIN, Defendants. CATHY SEIBEL, United States District Judge: Plaintiff, currently incarcerated in the Rockland County Jail, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights. By order dated February 4, 2020, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (IFP).1 DISCUSSION Because Plaintiff has been granted permission to proceed IFP, Plaintiff 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 Procedure generally requires that the summonses and complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served

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). the summonses and 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 the 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 State Trooper Daniel J. Balletto, Shield No. 4421; Ray A. Wickenheiser, Director of Mid-Hudson Satellite Crime Laboratory; Racheal Stubbs, Scientist III, Mid-Hudson Satellite Crime Laboratory; and Michael Jankowiak, Captain, Forensic Investigative Center, 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 further instructed 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 Plaintiff’s 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 issue summonses, complete the USM-285 forms with the addresses for State Trooper Daniel J. Balletto, Shield No. 4421; Ray A. Wickenheiser, Director of Mid-Hudson Satellite Crime Laboratory; Racheal Stubbs, Scientist HI, Mid-Hudson Satellite Crime Laboratory; and Michael Jankowiak, Captain, Forensic Investigative Center, and deliver all documents necessary to effect service to the U.S. Marshals Service. 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: February 13, 2020 White Plains, New York □

United States District Judge

DEFENDANTS AND SERVICE ADDRESSES

State Trooper Daniel J. Balletto, Shield No. 4421 SP Haverstraw 8 Thiells Mount Ivy Road Pomona, New York 10970 Ray A. Wickenheiser Director of Mid-Hudson Satellite Crime Laboratory 224 Breurig Road, P.O. Box 4077 New Windsor, New York 12553 Racheal Stubbs, Scientist III Mid-Hudson Satellite Crime Laboratory 224 Breurig Road, P.O. Box 4077 New Windsor, New York 12553 Michael Jankowiak, Captain Forensic Investigative Center 1220 Washington Avenue, Bldg. 30 Albany, New York 12226