The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
On October 19, 2000, Maron J. Vacarella, pro se, filed a complaint in this court alleging that defendant Jane Doe, an employee in the intake area of the Family Court in Queens County, violated his civil rights under 42 U.S.C. § 1983 by preventing him from filing a petition in that court in 2000 and thus denying him access to the courts.
Presently before the court is defendant's motion for summary judgment and plaintiff's cross motion for the same. Because plaintiff has failed to timely identify and serve defendant Jane Doe and because his claim lacks merit, defendant's motion for summary judgment is granted.
The relevant facts were adequately summarized by U.S. District Judge Carol Bagley Amon in her prior decision dated March 3, 2004 and will be amplified below only to the extent necessary.*fn1
Plaintiff alleges that, sometime in 1996, defendant Jane Doe, an "unidentified person who is/was employed (in the years 1996--2000) in the intake area at the Queens County Family Court," prevented plaintiff from obtaining petition forms that would have allowed him to file a petition to modify or suspend a child support order. (Am. Compl. ¶¶ 2--3.) Although the complaint was filed on October 19, 2000, defendant Jane Doe's identity has never been established nor has she ever been served with the summons and complaint.
In essence, plaintiff alleges that Jane Doe told plaintiff that the "record showed [that] his 'Order to Show Cause' was dismissed by the Judge (Berman) in the early part of 1996 . . . [because] the judge decided that neither the Plaintiff Pro Se nor his baby's mother [Theresa Bulzone] lived in Queens." (Id. at ¶ 4.) Jane Doe also allegedly informed plaintiff that he could not file his petition "until the support order was transferred to a court in the county in which the mother lived" (Id. at ¶ 4), and that, until such time, plaintiff could stop sending support payments. (Id. at ¶ 4.) Defendant Jane Doe insisted that he could not file his petition in Queens County Family Court even after the plaintiff informed her that "his baby's mother filed papers in another court listing a College Point address." (Id. at ¶ 4.)
In October 2000, after receiving a notice indicating that plaintiff's support payments were in arrears, plaintiff again attempted to file a petition in the Queens County Family Court, this time seeking to modify an order of support. (Vacarella Dep. 56:10--24.) Defendant Jane Doe, once again, allegedly refused to provide plaintiff with the necessary petition forms indicating that the petition needed to be filed in the "county where the mother lives." (Vacarella Dep. 55:2--15; 61:6--12.) Ultimately, by order dated April 2, 2004, a support magistrate of the Kings County Family Court permanently suspended the original order of support based on Ms. Bulzone's failure to appear in that court.*fn2
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The court must view all facts in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158--59, 90 S.Ct. 1598, 26 L.Ed. 2d 142 (1970)). However, the nonmoving party "may not rest upon mere conclusory allegations or denials, but must bring forward some affirmative indication that his version of relevant events is not fanciful." Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997) (internal quotation marks omitted). Furthermore, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247--48.
When a plaintiff proceeds in forma pauperis,"[t]he officers of the court shall issue and serve all process, and perform all duties." 28 U.S.C. § 1915(c); see also Fed. R. Civ. P. 4(c)(2) ("the court may direct that service be effected by a United States marshal, deputy United States marshal, or other person or officer specially appointed by the court for that purpose. Such an appointment must be made when the plaintiff is authorized to proceed in forma pauperis pursuant to 28 U.S.C. § 1915"). If a pro se plaintiff proceeding in forma pauperis provides the information necessary to identify a defendant, the Marshals' failure to effect service may result in the court's extending the normal 120 day time limit in which a plaintiff must serve a summons and complaint on a defendant. See Fed. R. Civ. P. 4(m). See Kavazanjian v. Rice, No. 03-CV-1923, 2005 WL 1377946, at *2 (E.D.N.Y. Jun. 6, 2005) (citing cases).
Here, the record shows that plaintiff described defendant Jane Doe as "an African-American female (light to medium complexion), approximately 5'6" tall, approximately 120 lbs., and approximately 26-33 years old." (Am. Compl. ¶ 2.) At the time of Judge Amon's order dated March 3, 2004, plaintiff had not yet described defendant Jane Doe specifically enough to allow her to be served with the summons and complaint. Judge Amon directed the Magistrate Judge to aid plaintiff in "ascertaining Jane Doe's identity and effecting service." On the basis of the description in the amended complaint and pursuant to the Judge's order, defense counsel procured the photographs of "all the female court clerks in Queens Family Court who worked there in both 1996 and 2000. Primarily, the array consisted of photographs of non-white females." (Timon Aff. ¶ 16.) These thirty-four numbered photos were shown to the plaintiff who, in his own handwriting, recorded his impressions and comments on a separate sheet of paper. (Timon Aff. ¶ 17; Ex. E.) Plaintiff was unable to positively identify a single candidate as defendant Jane Doe. (Timon Aff. ¶ 17; James Aff. ¶12.) Instead, plaintiff identified two females as closest in appearance to defendant noting that "9 looks the closest." (Timon Aff. Ex. E.) In his Memorandum of Law, plaintiff now contends that the woman depicted in photo number 34 "appeared to me to be Jane Doe because of her complexion and features (mouth). Contrary to the defendant's attorney's contention, the paper I signed in which I noted a problem was not a complete summary of my concerns." (Docket Entry no. 94 at 9.) Plaintiff's most recent ...