- UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SALIM NAFIS AZ-ZAHID, Plaintiff, 23-CV-6718 (KMK) -v.- ORDER OF SERVICE CO MURPHY; SGT. JOHN DOE, Defendants. KENNETH M. KARAS, United States District Judge: Plaintiff, who is incarcerated at Sullivan Correctional Facility (“Sullivan”), brings this pro se Action, under 42 U.S.C. § 1983, alleging that correction officers assaulted him and denied him medical care. By Order dated September 11, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.1 As set forth in this Order, the Court orders service on Defendant Murphy, and directs the New York State Attorney General to identify Defendant “Sgt. John Doe,” as well as all other correctional officers involved in the alleged events. DISCUSSION A. Service on Defendant Murphy 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 on Defendant Murphy.2 Walker v. Schult, 1 Prisoners are not exempt from paying the full filing fee, even when they have been granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1). 2 Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that a summons be served within 90 days of the date the Complaint is filed, Plaintiff is proceeding IFP and could not have served a summons and the Complaint on Defendant Murphy until the Court reviewed the Complaint and ordered that a summons be issued. The Court therefore extends the time to serve Defendant Murphy until 90 days after the date a summons is issued. 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). To allow Plaintiff to effect service on Defendant Murphy 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 Defendant Murphy. If the complaint is not served within 90 days after the date a summons is issued, 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). 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. Valentin Order 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 New York State Department of Corrections and Community Supervision (“DOCCS”) to fully identify “Sgt. John Doe” and any other unidentified correction officers who were present during the alleged assault on Plaintiff and during the alleged denial of medical care to him, on March 29, 2022, at Sullivan. It is therefore ordered that the New York State Attorney General, who is the attorney for and agent of DOCCS, must ascertain the identities and badge numbers of “Sgt. John Doe,” and of any other correctional officer involved in the events alleged in the Complaint, as well as the addresses where those individuals may be served. The Attorney General must provide this information to Plaintiff and the Court within 60 days of the date of this Order. Within 30 days of receiving this information, Plaintiff must file an amended complaint naming the newly identified individuals as defendants. The amended complaint will replace, not supplement, the original Complaint. An amended complaint form that Plaintiff should complete 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 addresses for the newly named defendants and to deliver all documents necessary to effect service on those individuals to the U.S. Marshals Service. C. Local Civil Rule 33.2 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 service of the Complaint, Defendant Murphy must serve responses to those standard discovery requests. In their responses, Defendant Murphy must quote each request verbatim.3 CONCLUSION The Clerk of Court is directed to issue a summons for Defendant Murphy, complete a USM-285 form with the address for this defendant, deliver all documents necessary to effect service on Defendant Murphy to the U.S. Marshals Service, and mail Plaintiff an information package. 3 If Plaintiff would like copies of those discovery requests before receiving the responses, and does not have access to the website, Plaintiff may request them from the court’s Pro Se Intake Unit. The Clerk of Court is also directed to mail a copy of this Order and the Complaint to the New York State Attorney General at: New York State Attorney General’s Managing Attorney’s Office, 28 Liberty Street, 16th Floor, New York, NY 10005. Local Civil Rule 33.2 applies to this Action. Defendant Murphy must comply with Local Civil Rule 33.2 within 120 days of service of the Complaint. SO ORDERED. Dated: March 11, 2024 White Plains, New York KENNETH M. KARAS United States District Judge DEFENDANT AND SERVICE ADDRESS Officer Murphy Sullivan Correctional Facility 325 Riverside Drive P.O. Box 116 Fallsburg, NY 12733-0116 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK _____CV_______________ Write the full name of each plaintiff. (Include case number if one has been assigned) AMENDED -against- COMPLAINT (Prisoner) Do you want a jury trial? ☐ Yes ☐ No Write the full name of each defendant. If you cannot fit the names of all of the defendants in the space provided, please write “see attached” in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section IV. NOTICE The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual’s full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2. I. LEGAL BASIS FOR CLAIM State below the federal legal basis for your claim, if known. This form is designed primarily for prisoners challenging the constitutionality of their conditions of confinement; those claims are often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or in a “Bivens” action (against federal defendants). ☐ Violation of my federal constitutional rights ☐ Other: II. PLAINTIFF INFORMATION Each plaintiff must provide the following information. Attach additional pages if necessary. First Name Middle Initial Last Name State any other names (or different forms of your name) you have ever used, including any name you have used in previously filing a lawsuit. Prisoner ID # (if you have previously been in another agency’s custody, please specify each agency and the ID number (such as your DIN or NYSID) under which you were held) Current Place of Detention Institutional Address County, City State Zip Code III. PRISONER STATUS Indicate below whether you are a prisoner or other confined person: ☐ Pretrial detainee ☐ Civilly committed detainee ☐ Immigration detainee ☐ Convicted and sentenced prisoner ☐ Other: IV. DEFENDANT INFORMATION To the best of your ability, provide the following information for each defendant. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are identical to those listed in the caption. Attach additional pages as necessary. Defendant 1: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address County, City State Zip Code Defendant 2: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address County, City State Zip Code Defendant 3: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address County, City State Zip Code Defendant 4: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address County, City State Zip Code V. STATEMENT OF CLAIM Place(s) of occurrence: Date(s) of occurrence: FACTS: State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach additional pages as necessary. INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received. VI. RELIEF State briefly what money damages or other relief you want the court to order. VII. PLAINTIFF’S CERTIFICATION AND WARNINGS By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. I understand that if I file three or more cases while I am a prisoner that are dismissed as frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in future cases. I also understand that prisoners must exhaust administrative procedures before filing an action in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be dismissed if I have not exhausted administrative remedies as required. I agree to provide the Clerk's Office with any changes to my address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case. Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application. Dated Plaintiff’s Signature First Name Middle Initial Last Name Prison Address County, City State Zip Code Date on which I am delivering this complaint to prison authorities for mailing:
Document Info
Docket Number: 7:23-cv-06718
Filed Date: 3/11/2024
Precedential Status: Precedential
Modified Date: 6/27/2024