Bonilla v. Aguila ( 2024 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IVAN BONILLA, Plaintiff, 24-CV-1309 (KMK) v. ORDER OF SERVICE J. AGUILA, CORRECTIONAL OFFICER, Defendant. KENNETH M. KARAS, United States District Judge: Plaintiff, who currently is incarcerated at Green Haven Correctional Facility, brings this Action, pro se, under 42 U.S.C. § 1983, alleging that Defendant violated his federal constitutional rights. By order dated March 14, 2024, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.1 DISCUSSION A. Service on Defendant 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.2 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). 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 the summons and the Complaint until the Court reviewed the complaint and ordered that the summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons is issued. To allow Plaintiff to effect service on Defendant Correction Officer Joshua L. Aguila3 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 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. If the complaint is not served within 90 days after the date the 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. 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, Defendants must serve responses to these standard discovery requests. In their responses, Defendants must quote each request verbatim.4 3 Plaintiff refers to Defendant as “J. Aguila” in the complaint, but he provides Defendant’s full name in his IFP application. (See ECF 3.) 4 If Plaintiff would like copies of these discovery requests before receiving the responses and does not have access to the website, Plaintiff may request them from the Pro Se Intake Unit. CONCLUSION The Clerk of Court is instructed to issue a summons for Correction Officer Joshua L. Aguila, complete the USM-285 form with the address for Defendant, and deliver all documents necessary to effect service to the U.S. Marshals Service. The Clerk of Court is also instructed to mail an information package to Plaintiff. Local Civil Rule 33.2 applies to this action. SO ORDERED. Dated: March 29, 2024 White Plains, New York KENNETH M. KARAS United States District Judge DEFENDANT AND SERVICE ADDRESS Correction Officer Joshua L. Aguila Green Haven Correctional Facility 594 Route 216 Stormville, NY 12582-0010