Fernandez v. Bourhill ( 2020 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JEFFREY FERNANDEZ, Plaintiff, 20-CV-3404 (VB) -against- ORDER OF SERVICE CORRECTION OFFICER D. BOURHILL, Defendant. VINCENT L. BRICCETTI, United States District Judge: Plaintiff, currently incarcerated at Fishkill Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendant assaulted him.1 By order dated May 26, 2020, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”).2 Because Plaintiff has been granted permission to proceed IFP, Plaintiff is entitled to rely on the Court and the U.S. Marshals Service to effect service. Walker v. Schult, 717 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 1 After Plaintiff filed this complaint, he submitted a letter to the Court stating that Defendant is harassing him in retaliation for filing a grievance about the assault. (ECF No. 3.) The Court construes the letter as a supplement to the complaint. 2 Prisoners are not exempt from paying the full filing fee, even when they have been granted permission to proceed in forma pauperis. See 28 U.S.C. § 1915(b)(1). 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 plaintiff’s responsibility to request an extension of time for service); see also Murray v. Pataki, 378 F. App’x 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 Defendant Bourhill 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 this defendant. 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 this defendant. Plaintiff must notify the Court in writing if Plaintiff’s address changes, and the Court may dismiss the action if Plaintiff fails to do so. Local Civil Rule 33.2, which requires defendants in certain types of prisoner cases to respond to specific, court-ordered discovery requests, applies to this action. Those discovery requests are available on the Court’s website under “Forms” and are titled “Plaintiff’s Local Civil Rule 33.2 Interrogatories and Requests for Production of Documents.” Within 120 days of the date of this order, Bourhill must serve responses to these standard discovery requests. In his response, Bourhill must quote each request verbatim.3 3 If Plaintiff would like copies of these discovery requests before receiving the responses and does not have access to the website, he may request them from the court’s Pro Se Intake Unit. CONCLUSION The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package. The Clerk of Court is further instructed to issue a summons, complete the USM-285 form with the address for Defendant Bourhill, and deliver all documents necessary to effect service to the U.S. Marshals Service. SO ORDERED. Dated: June 4, 2020 White Plains, New York \, Wu Mu VINCENT BRICCETTI United States District Judge DEFENDANT AND SERVICE ADDRESS Correction Officer D. Bourhill Fishkill Correctional Facility 18 Strack Drive Beacon, New York 12508-0307