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Rivera v. Annucci

United States District Court, S.D. New York

December 5, 2019

ALBERT RIVERA, Plaintiff,
v.
ANTHONY ANNUCCI, Acting Commissioner of the New York State Department of Corrections; M. ROYCE, Superintendent of the Green Haven Correctional Facility; A. RUSSO, Deputy Superintendent of Security at Green Haven Correctional Facility; T. OTT, Corrections Officer; JOHN DOE, Correction Officer, Defendants.

          ORDER OF SERVICE

          NELSON S. ROMAN JUDGE

         NELSON S. ROMAN, United States District Judge: Plaintiff, currently incarcerated at Green Haven Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging violations of his constitutional rights. By order dated December 4, 2019, the Court granted Plaintiffs request to proceed without prepayment of fees, that is, in forma pauperis.[1]

         STANDARD OF REVIEW

         The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).

         DISCUSSION

         A. Service on Named Defendants

         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, 111 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)). Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that the summons and complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served the summons and complaint until the Court reviewed the complaint and ordered that a summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons is issued. If the complaint is not served within that time, 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 plaintiffs responsibility to request an extension of time for service); see also Murray v. Pataki, 378 Fed.Appx. 50, 52 (2d Cir. 2010) ("As long as the [plaintiff proceeding IFP] 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).").

         To allow Plaintiff to effect service on Defendants Correction Officer T. Ott, New York State Department of Corrections and Community Supervision (DOCCS) Commissioner Anthony Annucci, Green Haven Superintendent M. Royce, and Green Haven Deputy Superintendent of Security A. Russo 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 each of these defendants. The Clerk of Court is further instructed to issue a summons and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon these defendants.

         Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so.

         B. John Doe Correction Officer

         Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the complaint, Plaintiff supplies sufficient information to permit the DOCCS to identify the John Doe Correction Officer on duty with Correction Officer T. Ott at the Green Haven C & D recreation yard at about 6:40 p.m. on October 11, 2019. It is therefore ordered that the New York State Attorney General, which is the attorney for and agent of the DOCCS, must ascertain the identity and badge No. of the John Doe Correction Officer whom Plaintiff seeks to sue here and the address where the defendant may be served. The New York State Attorney General must provide this information to Plaintiff and the Court within sixty days of the date of this order.

         Within thirty days after receiving this information, Plaintiff must file an amended complaint naming the John Doe defendant. The amended complaint will replace, not supplement, the original complaint. An amended complaint form for Plaintiff to complete after receiving this information is attached to this order. Once Plaintiff has filed an amended complaint, the Court will screen the amended complaint and, if necessary, issue an order directing the Clerk of Court to complete the USM-285 forms with the address for the named John Doe Defendant and deliver to the U.S. Marshals Service all documents necessary to effect service.

         C. Request for Pro Bono Counsel

         Plaintiff requests pro bono counsel. Under the IFP statute, a court has no authority to "appoint" counsel in a civil action but instead, may only "request" that an attorney volunteer to represent a litigant. Mallard v. U.S. Dist. Court for the S. Dist. of Iowa,490 U.S. 296, 301-310 (1989). Courts must therefore grant applications for pro bono counsel sparingly, and with reference to public benefit, in order to preserve the "precious ...


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