Opinion

Brown v. Urbanski

Court: District Court, S.D. New York
Filed: Feb 22, 2021
Cited by: 0 cases
Authority: More cited than 27.2%

“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).”

How later courts described this case

“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).”
holding that it is the plaintiff’s responsibility to request an extension of time for service

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

MALIK L. BROWN,

Plaintiff,

21-CV-0214 (CS)

-against-

ORDER OF SERVICE

STEPHEN URBANSKI, et al.,

Defendants.

CATHY SEIBEL, United States District Judge:

Plaintiff, currently incarcerated in Midstate Correctional Facility, brings this pro se action

under 42 U.S.C. § 1983, alleging that Defendants violated his federal constitutional rights when

he was incarcerated in Fishkill Correctional Facility. By order dated February 16, 2021, the

Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma

pauperis (“IFP”).1

DISCUSSION

A. Service on Defendants

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. 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

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).

summonses and complaint until the Court reviewed the complaint and ordered that summonses

be issued. The Court therefore extends the time to serve until 90 days after the date the

summonses are issued. If the complaint is not served within that time, 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); 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 Stephen Urbanski, Issa Yunes, Joseph

Deacon, Mark Delbianco, Sharon Frost, Emily Williams, Alexander Minard, Brenda Walsh,

Danielle Cebron, and Anthony Annucci 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 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.”

CONCLUSION

The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an

information package.

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

forms with the addresses for Defendants Stephen Urbanski, Issa Yunes, Joseph Deacon, Mark

Delbianco, Sharon Frost, Emily Williams, Alexander Minard, Brendan Walsh, Danielle Cebron,

and Anthony Annucci, and deliver to the U.S. Marshals Service all documents necessary to effect

service.

Local Civil Rule 33.2 applies to this action.

SO ORDERED.

Dated: February 22, 2021

White Plains, New York .

fo SEIBEL

United States District Judge

Ff 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.

DEFENDANTS AND SERVICE ADDRESSES

Stephen Urbanski

Deputy Superintendent of Security