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

> District Court, S.D. New York · August 8, 2019

URL: https://www.frixlaw.com/law-library/cases/10317580

## Case

- **Court:** District Court, S.D. New York
- **Decided:** August 8, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10317580

## How later opinions describe it (automated extraction)

- holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue
- holding that it is the plaintiff’s responsibility to request an extension of time for service

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10317580. Public record. Not legal advice.