Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Johnson v. DHS/ICE

United States District Court, Second Circuit

December 18, 2013

JOEL JEREMIAH JOHNSON, Plaintiff,
v.
DHS/ICE, et al., Defendants.

DECISION AND ORDER

H. KENNETH SCHROEDER, Jr., Magistrate Judge.

This case was referred to the undersigned, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive matters. This matter is now before the Court on plaintiff's response to the Court's Order directing plaintiff to show cause why the complaint should not be dismissed as against certain defendants for his failure to serve said defendants (Docket No. 12) and plaintiff's motions for the appointment of counsel (Docket Nos. 16-17). For the following reasons, plaintiff is granted an enlargement of time, pursuant to Fed.R.Civ.P. 4(m), to serve the summons and complaint upon DHS/ICE, Michael Phillips and Todd Tryon, and plaintiff's motions for the appointment of counsel are denied without prejudice.

PROCEDURAL BACKGROUND

Plaintiff, Joel Jeremiah Johnson, an immigration detainee at the Buffalo Federal Detention Facility (BFDF"), filed a pro se complaint under, inter alia, Bivens v. Six Unknown Named Agents, 403 U.S. 388, 398 (1971), and the Americans with Disabilities Act ("ADA"), Title III, 42 U.S.C. § 12182 et seq., against defendants, DHS/ICE (Department of Homeland Security, Immigration and Customs Enforcement), [1] Michael Phillips, ICE Local Field Office Director, Todd Tryon, Acting Facilities Director, Lieutenant Cinotti, Detention Officer Hall and Detention Officer Doddy. Plaintiff paid the filing fee and summonses were issued, and plaintiff proceeded to attempt to serve the summonses and complaint upon each defendant. Defendants Cinotti, Hall and Doddy have appeared in this action and their motion for summary judgment is pending but defendants DHS, ICE, Tryon and Phillips have not.

On July 25, 2013, the Court (Hon. William M. Skretny) issued an Order directing that plaintiff show cause why the complaint should not be dismissed as against DHS/ICE, Phillips and Tryon ("federal defendants")[2] based on plaintiff's failure to effect service upon said defendants pursuant to Fed.R.Civ.P. 4(m). Plaintiff responded to said Order by providing the Court with copies of "Proof[s] of Service."(Docket No. 12.) With respect to ICE, the Proof of Service indicates that on April 17, 2013, plaintiff served a "Supervisor, "Mr. Delong, a person plaintiff claims was designated to accept service on behalf of ICE; with respect to both DHS and Michael Phillips, the Proofs of Service indicate that plaintiff served them by mailing the summons and complaint by certified mail to Phillips on April 17, 2013; and with respect to Todd Tryon, plaintiff claims that he left the summons and complaint with someone by the name of "Johwinker"or "Vohwinker"at the BFDF and that this individual was a person designated to accept service for Tryon. ( Id. )

DISCUSSION

A. Service on Federal Agencies and Employees: Rule 4(i)

Pursuant to Fed.R.Civ.P. 4(i)(2), in order to serve a federal agency (DHS, ICE) or an employee sued in an official capacity, "a party must serve the United States[3] and also send a copy of the summons and complaint by registered or certified mail to the agency, corporation, officer, or employee."

Pursuant to Fed.R.Civ.P. 4(i)(3), in order to serve an officer or employee sued individually (Phillips and Tryon) "for an act or omission occurring in connection with duties performed on the United States' behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g)."[4]

Based on the Proofs of Service submitted by plaintiff, it is clear that defendants DHS/ICE, Phillips and Tryon have not been served properly pursuant to Rule 4(i)(2)-(3). First, there is no proof that plaintiff served the United States, pursuant to Rule 4I(i)(1), which is required for serving both an agency of the United States and an officer or employee sued in either or both his official or individual capacity. Fed.R.Civ.P. 4(i)(2)-(3). Specifically, there in no proof that (A) plaintiff "deliver[ed]"a copy of the summons and complaint to the United State Attorney for the Western District of New York or sent a copy of the summons and complaint by registered or certified mail to the civil process clerk at the United States Attorney's Office; and (B) sent a copy of the summons and complaint by registered or certified mail to the Attorney General of the United States in Washington, D.C. Service on the United States as set forth in Rule 4(i)(1) is required for proper service on both a federal agency and an officer or employee. Id., 4(i)(2)-(3). As to DHS/ICE and Phillips, the Proofs of Service indicate that plaintiff sent the summons and complaint by certified mail to Phillips. Plaintiff, however, did not serve the United States as required. As to Tryon, not only did plaintiff fail to serve the United States, see Fed.R.Civ.P. 4(i)(1)(A)-(B), he also failed to serve Tryon properly pursuant to Rule 4(e). There is no evidence that the individual plaintiff claimed to have "left"and "served"the summons and complaint on, Vohwinker or Johwiner, was an individual designated to accept service on behalf of Tryon. (Docket No. 12.) Accordingly, plaintiff has not established that he properly served any of the federal defendants.

B. Enlarge Time to Serve Summons and Complaint: Rule 4(m)

Rule 4(m) provides that if a defendant is not served within 120 days after the complaint is filed, "the court -on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time."The Court, however, "shall"extend the time for service for an appropriate period of time if the plaintiff shows "good cause"for the failure to serve the defendant within 120 days. Fed.R.Civ.P. 4(m). District courts also have discretion to enlarge the 120-day period even in the absence of good cause. See Zapata v. City of New York, 502 F.3d 192, 196-67 (2d Cir. 2007).

The Court notes that a prisoner or immigration detainee generally proceeds in forma pauperis in this Court and is therefore entitled automatically to service of the summons and complaint by the United States Marshals Service. See Fed.R.Civ.P. 4(c)(3); 28 U.S.C. § 1915(d). In those situations, the plaintiff is entitled to rely on the Marshals Service to perfect service and "good cause"under Rule 4(m) is shown when plaintiff provides proper instructions to the Marshals Service- i.e., properly identifies the defendant-to personally serve the summons and complaint upon the defendant and the Marshals Service fails to serve the defendant. Romandette v. Weetabix, 807 F.2d 309, 311 (2d Cir. 1986); see also Murray v. Pataki, 378 Fed.Appx. 50, 2010 WL 2025613, at *2 (2d Cir. May 24, 2008) (Summary Order) ("As long as the pro se prisoner 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).") (citations omitted)).

For those pro se individuals not proceeding in forma pauperis and thus not entitled to Marshals Service automatically, they may seek an order from the Court directing the Marshals Service to serve the defendant(s) for a fee. See Fed.R.Civ.P. 4(c)(3). The granting of such an order is discretionary with the Court. It is the general practice of the Clerk of Court that at the time of filing of a complaint and paying of the filing fee, a pro se litigant is provided a Notice Regarding Service of Summons and Complaint pursuant to Rule 4(m) and a form motion requesting the Court to order Marshals Service. In this case, the Docker Report notes that summonses were issued to plaintiff and that he was forwarded the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.