United States District Court, N.D. New York
WONDER WILLIAMS 10-A-0102 Plaintiff, pro se Auburn Correctional Facility P.O. Box 618 Auburn, NY 13021
DECISION AND ORDER
GARY L. SHARPE, Chief District Judge.
Plaintiff Wonder Williams commenced this action by filing a pro se complaint pursuant to 42 U.S.C. § 1983 ("Section 1983") together with an application to proceed in forma pauperis. Dkt. No. 1 ("Compl."); Dkt. No. 2 ("IFP Application"). Plaintiff thereafter submitted an amended complaint, which replaced and superceded the original complaint. Dkt. No. 9 ("Am. Compl."). Plaintiff also paid the entire filing fee required for this action. By Decision and Order filed December 6, 2013, the Court denied plaintiff's IFP Application without prejudice, as incomplete, because it had not been certified by an appropriate official at his correctional facility as required by this District. Dkt. No. 11 (the "December Order") at 3. Following review of in accordance with 28 U.S.C. § 1915A(b), the Court also dismissed the entire amended complaint because it failed to state a claim upon which relief may be granted. See generally December Order. In light of his pro se status, plaintiff was given an opportunity to file a second amended complaint. Id. Currently pending review is plaintiff's second amended complaint. Dkt. No. 12 ("Sec. Am. Compl.).
A. Review of the Second Amended Complaint
The legal standard governing the dismissal of a pleading for failure to state a claim pursuant to 28 U.S.C. § 1915A(b) was discussed at length in the December Order and it will not be restated in this Decision and Order. See December Order at 3-5.
Plaintiff's second amended complaint asserts a claim arising out of his confinement at the Auburn Correctional Facility. Sec. Am. Compl. at 3. Plaintiff alleges that beginning in May, 2010, and continuing on a regular basis for months, defendant Lane interfered with plaintiff's receipt of his incoming non-legal mail without authorization. Id. at 3-7. Plaintiff contacted both defendants McCarthy and Chuttey on more than one occasion about defendant Lane's alleged misconduct, but they did not correct the wrongdoing. Id. Plaintiff seeks monetary damages and declaratory relief. Id. at 9. For a complete statement of plaintiff's claims, refer to the second amended complaint.
Construed liberally, plaintiff alleges a First Amendment mail-interference claim against defendant Lane and a claim that defendants McCarthy and Chuttey, as supervisors, failed to properly supervise or train defendant Lane, or to correct his misconduct after receiving reports of same. Mindful of the requirement to liberally construe pro se pleadings, see, e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the second amended complaint alleges enough to warrant a responsive pleading from defendants Lane, McCarthy, and Chuttey. Thus, the second amended complaint is accepted for filing, and is the operative pleading. In so ruling, the Court expresses no opinion as to whether plaintiff's claims can withstand a properly filed motion to dismiss or for summary judgment.
Plaintiff has not named Howard Graham, Karen Bellamy, John Doe (Deputy Superintendent), M. Courtney, C.O. Chandler, John Doe # 1 (Sergeant), Stock, John Doe (Correctional Officer), or John Doe # 2 (Sergeant), as defendants in his second amended complaint, nor has he included any allegations of wrongdoing by them. Accordingly, Howard Graham, Karen Bellamy, John Doe (Deputy Superintendent), M. Courtney, C.O. Chandler, John Doe # 1 (Sergeant), Stock, John Doe (Correctional Officer), or John Doe # 2 (Sergeant) are dismissed without prejudice as defendants to this action.
B. Service of Process
As part of his second amended complaint, plaintiff requests service of his summons and complaint by the U.S. Marshals Service. Sec. Am. Compl. at 9. Where a plaintiff has been authorized by the Court to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, the U.S. Marshals Service is appointed to effect service of process of the summons and complaint on his behalf. See Fed. R. Civ. Pro. 4(c)(2) (U.S. Marshal must be appointed to serve process when plaintiff is authorized to proceed in forma pauperis)); 28 U.S.C. § 1915(d) ("the officers of the court shall issue and serve all process and perform all duties in [in forma pauperis] cases."). Thus, once the plaintiff has identified the defendants, the U.S. Marshals Service must undertake to locate them and accomplish the service. In addition, Rule 4(c) of the Federal Rules of Civil Procedure provides that "[a]t the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court." Fed.R.Civ.P. 4(c)(3).
In this case, plaintiff paid the entire filing fee for this action. Although he also requested in forma pauperis status, his IFP Application was denied without prejudice as incomplete, because it was not signed and certified by an appropriate official at his correctional facility. See December Order at 3, 21. As a result, plaintiff is responsible for serving the summons and complaint on the defendants. However, plaintiff is free to submit a renewed, completed, signed, and properly certified IFP Application to the Court for consideration. If his IFP Application is granted, the Court will direct the U.S. Marshal to effect service of process on plaintiff's behalf. Alternatively, if plaintiff is not indigent, or otherwise elects not to seek in forma pauperis status, in light of the fact that plaintiff is incarcerated and proceeding pro se, and in order to advance the ...