Avaras v. Board of Education of The Clarkstown Central School District

UNITED STATES DISTRICT COURT | DOCUMENT

SOUTHERN DISTRICT OF NEW YORK J ELECTRONICALLY BF} LEO /

CONNIE AVARAS, individually and on behalf pec

of N.A., a minor child, ae □ 3/87 WA.

Plaintiffs, aa

-against- 19-CV-5355 (NSR)

BOARD OF EDUCATION OF THE ORDER OF SERVICE

CLARKSTOWN CENTRAL SCHOOL

DISTRICT; NYSED,

Defendants.

NELSON S. ROMAN, United States District Judge:

Plaintiff Connie Avaras, appearing pro se, brings this action individually and on behalf of

her child NA., under the Individuals with Disabilities in Education Act (“IDEA”), 20 U.S.C. § 1400

et seq. By order dated July 26, 2019, the Court granted Plaintiff’s request to proceed without

prepayment of fees, that is, in forma pauperis.

DISCUSSION

A. Service on Defendants

Because Plaintiff has been granted permission to proceed IFP, she 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 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 vy. 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 Defendants Board of Education of the Clarkstown

Central School District and NYSED 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 summonses 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 her address changes, and the Court may dismiss

the action if Plaintiff fails to do so.

B. Request for Counsel

Plaintiff submitted an application for the Court to request pro bono counsel. The factors to

be considered in ruling on an indigent litigant’s request for counsel include the merits of the case,

Plaintiff’s efforts to obtain a lawyer, and Plaintiff’s ability to gather the facts and present the case if

unassisted by counsel. See Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Hodge v.

Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are “[t]he factor which

command|[s] the most attention.” Cooper, 877 F.2d at 172. Because it is too early in the proceedings

for the Court to assess the merits of the action, Plaintiff's request for counsel (ECF No. 3) is denied

without prejudice to renewal at a later date.

C. Motion for Permission for Electronic Case Filing

Plaintiff also submitted a motion for permission for electronic case filing. Plaintiff’s motion

(ECF No. 6) does not indicate that she has completed the Court’s required CM/ECF introduction

course. Her request for permission for electronic case filing is therefore denied without prejudice to

renewal at a later date.

CONCLUSION

Because Plaintiff has consented to electronic service of documents filed in this action (ECF

No. 5), there is no need for the Court to mail this order to her. Plaintiff’s request for counsel (ECF

No. 3) is denied without prejudice to renewal at a later date. Plaintiff’s request for permission for

electronic case filing (ECF No. 6) is also denied, without prejudice, to renew at a later date. The

Clerk of the Court is directed to terminate the pending motions at ECF Nos. 3 and 6.

The Clerk of Court is instructed to issue summonses, complete the USM-285 forms with the

addresses for Defendants Board of Education of the Clarkstown Central School District and

NYSED, and deliver all documents necessary to effect service to the U.S. Marshals Service.

The Clerk of Court is directed to docket this as a “written opinion” within the meaning of

Section 205(a)(5) of the E-Government Act of 2002.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not

be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal.

Cf Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates

good faith when he seeks review of a nonfrivolous issue).

SO ORDERED.

Dated: hip

White Plains, New York

August 8, 2019 □

NELSON S. ROMAN

United States District Judge

DEFENDANTS AND SERVICE ADDRESSES

1. Board of Education of the Clarkstown Central School District

62 Old Middletown Rd.

New City, NY 10956

2. New York State Education Department (NYSED)

80 Wolf Road, Suite 203

Albany, New York 12205-26483