In re McDaniel Litigation ( 2020 )

Voie Ot Ee DOCUMENT UNITED STATES DISTRICT COURT □□□ AELY FILED SOUTHERN DISTRICT OF NEW YORK —$__. DATE FILED:___ 99/23/2020 CURTIS A. MCDANIEL, Plaintiff, -against- 1:19-cv-7680 (AJN) (KHP) THE PEOPLE OF THE STATE OF NEW YORK ET ORDER OF SERVICE AL. Defendants. KATHARINE H. PARKER, United States Magistrate Judge: It has been brought to the Court’s attention that the Plaintiff's Second Amended Complaint (ECF No. 14) has not been served on the two individual Defendants, Officers Nicholas Evangelista and Julian Febres. Because Plaintiff has been granted permission to proceed in forma pauperis (“IFP”), he 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. A(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 summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons is issued. If the amended 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) (summary order) (“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).”). CONCLUSION To allow Plaintiff to effect service on Defendants Evangelista and Febres 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. The Clerk of Court is directed to mail a copy of this order to Plaintiff. SO ORDERED. Dated: New York, New York □□ 4 ‘3 September 23, 2020 Kethaurt 4 i} ke . KATHARINE H. PARKER United States Magistrate Judge DEFENDANTS AND SERVICE ADDRESSES 1. Police Officer Nicholas Evangelista, Shield No. 6026 23rd Precinct 164 East 102nd Street New York, N.Y. 10039 2. Police Officer Julian Febres, Shield No. 21740 23rd Precinct 164 East 102nd Street New York, N.Y. 10039