Zielinski v. Martuscello

Opinion

DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK DATE FILED: 2/27/2024 JEREMY ZIELINSKI, Plaintiff, -against- 24-CV-0150 (NSR) DANIEL MARTUSCELLO; CORRINE LEONE: ORDER OF SERVICE DAVID HOWARD, Defendants.

NELSON S. ROMAN, United States District Judge: Plaintiff, who currently 1s incarcerated at Woodbourne Correctional Facility, brings this action, pro se, under 42 U.S.C. § 1983, alleging that Defendants are violating his rights. By order dated February 22, 2024, the court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. ! DISCUSSION 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)).

' 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). ? Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that a summons 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.

To allow Plaintiff to effect service on Defendants Daniel Martuscello, the Acting Commissioner of the New York State Department of Corrections and Community Supervision (“DOCCS”); Corrine Leone, the Law Library Coordinator of DOCCS; and David Howard, the Superintendent of Woodbourne Correctional Facility, 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 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 Defendants. If the complaint is not served within 90 days after the date 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). 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 instructed to issue summonses, complete the USM-285 forms with the addresses for Daniel Martuscello, the Acting Commissioner of the New York State Department of Corrections and Community Supervision (“DOCCS”); Corrine Leone, the Law Library Coordinator of DOCCS; and David Howard, the Superintendent of Woodbourne Correctional Facility, and deliver all documents necessary to effect service to the U.S. Marshals Service. The Clerk of Court is further directed to mail an information package and a copy of this Order to Plaintiff. 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 27, 2024 White Plains, New York NELSON S.ROMAN United States District Judge

DEFENDANTS AND SERVICE ADDRESSES

Daniel Martuscello, the Acting Commissioner of the New York State Department of Corrections and Community Supervision (“DOCCS”) 1220 Washington Avenue Bldg 2 Albany, New York 12226-2050 Corrine Leone, the Law Library Coordinator of DOCCS 1220 Washington Avenue Bldg 2 Albany, New York 12226-2050 David Howard, Superintendent of Woodbourne Correctional Facility Woodbourne Correctional Facility 99 Prison Road Woodbourne, New York 12788-1000