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Driscoll v. Rudnick

United States District Court, W.D. New York

October 14, 2014

RASHAD DRISCOLL, SR., Plaintiff,
v.
OFFICER JOSEPH RUDNICK, et al., Defendants.

DECISION AND ORDER

FRANK P. GERACI, Jr., District Judge.

On August 28, 2014, the Court issued an Order that, inter alia, dismissed the pro se Amended Complaint against Defendants James T. Hayden and Weeden A. Wetmore, see 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A, and directed the Clerk of the Court to serve the Summons and Amended Complaint upon the remaining Defendants, Officer Joseph Rudnick and Trooper Fifield. (Dkt. #8.) Summonses were issued and the Marshals Service attempted to serve Rudnick and Fifield by mail pursuant to N.Y.C.P.L.R. § 312-a. Fifield filed an answer (Dkt. #10), but the Marshals Service's Process Receipt and Return of Service Form was returned with a notation that Rudnick no longer worked at the Elmira Police Department, which is the address noted on the Summons for Rudnick and where service by mail was attempted (Dkt. #9).

Once a pro se plaintiff is granted permission to proceed in forma pauperis, the responsibility for effecting service of the summons and complaint shifts from the plaintiff to the court. See 28 U.S.C. § 1915(d); Wright v. Lewis, 76 F.3d 57, 59 (2d Cir. 1996). "Such a plaintiff is thus relieved by his poverty of the responsibility for filing and effecting service of his complaint, '" and has "thus relinquished control over service." Soto v. Keenan, 409 F.Supp.2d 215, 218 (W.D.N.Y. 2006) (quoting Wright, 76 F.3d at 59). The Court, therefore, requests that the Corporation Counsel of the City of Elmira ascertain a proper address for service upon Rudnick pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam). The Corporation Counsel need not undertake to defend or indemnify Rudnick at this juncture. This Order merely provides a means by which Plaintiff may name and properly serve the Defendant as instructed by the Second Circuit in Valentin.

The Corporation Counsel of the City of Elmira is hereby requested to produce the information specified above to the Court's Pro Se Office by November 14, 2014. If the information includes a personal residence address, the information can be provided to the Court in camera. Once this information is provided, amended summonses shall be issued and the Court shall direct service on Rudnick. The Clerk of the Court shall send a copy of this Order and the Amended Complaint to the corporation Counsel for the City of Elmira, City Hall, 317 East Church Street, Elmira, New York 14901.

SO ORDERED.


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