Brown v. Annucci

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

BYRON K. BROWN, i OLIN mee

Plaintiff, pes JM □

: [orere lefore

ANTHONY ANNUCCI, Commissioner; : bo

MICHAEL CAPRA, Superintendent; F. :

CARABALLO, Correctional Sergeant; J. :

AYALA, Correctional Officer; S. AMARO, : FOURTH AMENDED

Correctional Officer; V. YOUNG, Registered : ORDER OF SERVICE

Nurse; K. GREEN, Correctional Officer; T. :

BOWEN, Correctional Officer; M. BARNES, : 19 CV 9048 (VB)

Correctional Captain; “RODRIGUEZ” JOHN :

DOE, Correctional Officer; JOHN DOE, :

Correctional Officer, M. ROYCE, Deputy :

Superintendent of Security; D. :

VENNETTOZZI, Director of Special :

Housing; and L. MALIN, Deputy :

Superintendent of Programs, :

Defendants. :

ee 8 fy a a tt

Briccetti, J.:

Plaintiff, who is proceeding pro se and in forma pauperis, commenced this action by

filing a complaint dated September 25, 2019, alleging defendants violated his constitutional

rights. (Doc. # 2).

On October 29, 2019, the Court issued an Order of Service directing service of the

complaint on twelve identified defendants. (Doc. #5). The Order of Service further directed the

New York State Attorney General, by December 30, 2019, to ascertain and identify the two John

Doe defendants named in the complaint—Correction Officers John Doe and “Rodriguez” John

Doe—so that they may be served. (Id.).

Plaintiff filed an amended complaint dated November 13, 2019. (Doc. #7). The

amended complaint named and identified an additional defendant, but also contained the same

allegations against John Doe and “Rodriguez” John Doe as stated in the original complaint.

(Id.). On November 8, 2019, the Court issued an Amended Order of Service to effectuate service

on the newly named defendant. (Doc. #8). This Order noted the New York Attorney General’s

obligation to ascertain and identify John Doe and “Rodriguez” Doe Joe remained in effect.

(id. at 1-2).

By letter dated December 27, 2019, pursuant to Valentin v. Dinkins, 121 F.3d 72 Qd Cir.

1997), the New York State Attorney General identified defendant “Rodriguez” John Doe as Sing

Sing Correction Officer David O. Rodriguez. (Doc. #21). Accordingly, on December 30, 2019,

the Court issued a Second Amended Order of Service to effectuate service on David O.

Rodriguez. (Doc. #23), However, the Attorney General’s Office was unable to ascertain the

identity of the remaining John Doe defendant based on the allegations in the amended complaint.

(Doc. #21). Accordingly, the Second Amended Order of Service instructed plaintiff to provide a

more detailed description of the John Doe defendant, so that this defendant can be identified and

served, (Doc. #23 at 3).

By letter dated January 12, 2020, plaintiff informed the Court that the correct

“Rodriguez” John Doe defendant is “Carlos J. Rodriguez,” not David O. Rodriguez. (Doc, #27).

Plaintiff's letter also provided a more detailed description of the other John Doe defendant. (Id.).

Accordingly, on January 22, 2020, the Court issued a Third Amended Order of Service, directing

the Marshal Service to effectuate service on Carlos J. Rodriguez and instructing defense counsel

to ascertain the identity and badge number of the remaining John Doe defendant so that such

defendant may be served. (Doc. #30).

By letter dated January 21, 2020, defense counsel informed the Court that defendant

Bowen is out on leave from Sing Sing Correctional Facility and has not been served by the

Marshals Service. (Doc. #28). Accordingly, by Order that same day, the Court instructed

defense counsel to ascertain and provide, by February 11, 2020, an address at which defendant

Bowen may be served. (Doc. #29).

By letter dated February 10, 2020, defense counsel provided defendant Bowen’s

designated address for service. (Doc. #36). By letter dated February 18, 2020, defense counsel

identified the remaining John Doe defendant as “C.O. Lervis Merejo,” and provided an address

for service on this defendant. (Doc. #39).

I. Defendant John Doe

Because defendant counsel identifies the John Doe defendant as “C.O. Lervis Merejo,”

the Court will direct the Clerk to terminate John Doe as a defendant in this case, and to add C.O.

Lervis Merejo to the docket as a defendant.

In addition, to allow plaintiff to effect service on defendant Lervis Merejo 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 listing this defendant and deliver to the Marshals Service

all of the paperwork necessary for the Marshals Service to effect service upon this defendant.

The service address for this defendant is appended to this Order.

It is plaintiff’s responsibility to ensure that service is made within 90 days of the date the

summons is issued and, if necessary, to request an extension of time for service. See Meilleur v.

Strong, 682 F.3d 56, 63 (2d Cir. 2012).

Defendant Bowen

To allow plaintiff to effect service on defendant Carl T. Bowen 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 an amended summons as to this defendant and deliver to the Marshals Service all of the

paperwork necessary for the Marshals Service to effect service upon this defendant. The service

address for this defendant is appended to this Order.

It is plaintiff’s responsibility to ensure that service is made within 90 days of the date the

amended summons is issued and, if necessary, to request an extension of time for service. See

Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012),

CONCLUSION

The Clerk is directed to (i) terminate from the docket defendant John Doe, and (ii) add

Sing Sing Correction Officer Lervis Merejo to the docket as a defendant.

The Clerk is further directed to issue a summons as to defendant Lervis Merejo and an

amended summons as to defendant Carl T. Bowen.

The Court also directs the Clerk of Court to complete USM-285 forms with the addresses

for the listed defendants and deliver all documents necessary to effect service on these

defendants to the U.S, Marshals Service.

The Clerk shall mail a copy of this Order to plaintiff at the address on the docket.

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).

Dated: February 18, 2020

White Plains, New York

Vaud f ~

United States District Judge

APPENDIX

1. Correction Officer Lervis Merejo

Sing Sing Correctional Facility

354 Hunter Street

Ossining, New York 10562

2. Carl T. Bowen

Department of Corrections and Community Supervision

Harriman State Campus, Building 9

1220 Washington Avenue

Albany, New York 12226-2050