Brown v. Annucci

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

BYRON K. BROWN,

Plaintiff,

-against- 23-CV-6056 (CS)

ANTHONY ANNUCCI, Commissioner, NYS ORDER OF SERVICE

DOCCS; JOSEPH SERGEANT; JOHN DOE,

Officer in Charge; JOHN DOE, Escorting Officer,

Defendants.

CATHY SEIBEL, United States District Judge:

Plaintiff, who is currently incarcerated at Sing Sing Correctional Facility, brings this pro se

action under 42 U.S.C. § 1983, alleging that Defendants denied him the right to attend a Jumah

prayer service, in violation of the First and Fourteenth Amendments of the United States

Constitution and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.

§ 2000cc, et seq. By order dated August 15, 2023, the Court granted Plaintiff’s request to proceed in

forma pauperis (“IFP”), that is, without prepayment of fees.1

DISCUSSION

A. Rule 21 of the Federal Rules of Civil Procedure

Plaintiff asserts that Captain N issued an email and falsified reports that contributed to the

denial of Plaintiff’s right to freely exercise his religion, but Plaintiff does not name Captain N as a

Defendant in this action. In light of Plaintiff’s pro se status, and clear intention to bring claims

against Captain N, the Clerk of Court is directed, under Rule 21 of the Federal Rules of Civil

Procedure, to amend the caption of this action to add “Captain N” as a Defendant. This amendment

is without prejudice to any defenses that this Defendant may wish to assert.

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).

B. Service on NYS DOCCS Commissioner Iannucci and Correctional Sergeant Joseph

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)).

To allow Plaintiff to effect service on Defendants NYS DOCCS Commissioner Anthony

Annucci and Correctional Sergeant Joseph 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 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.

If the complaint is not served within 90 days after the date the summonses are 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.

C. John Doe Defendants

Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in

identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the complaint, Plaintiff supplies

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 summonses and the 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 summonses are issued.

sufficient information to permit the New York State Department of Corrections and Community

Supervision to identify Captain N and the two John Doe Defendants involved in the alleged

deprivation of Plaintiff’s rights on April 14, 2023. It is therefore ordered that the New York State

Attorney General, who is the attorney for and agent of the New York State Department of

Corrections and Community Supervision, must ascertain the identity and badge number of each

John Doe whom Plaintiff seeks to sue here and the addresses where the defendants may be served.

The New York State Attorney General must provide this information to Plaintiff and the Court

within sixty days of the date of this order.

Within thirty days of receiving this information, Plaintiff must file an amended complaint

naming the John Doe defendants. The amended complaint will replace, not supplement, the original

complaint. An amended complaint form that Plaintiff should complete is attached to this order. Once

Plaintiff has filed an amended complaint, the Court will screen the amended complaint and, if

necessary, issue an order directing the Clerk of Court to complete the USM-285 forms with the

addresses for the named John Doe Defendants and deliver all documents necessary to effect service

to the U.S. Marshals Service.

D. New York Legal Assistance Group

Plaintiff may consult the legal clinic in this District that assists people who are parties in

civil cases and do not have lawyers. The Clinic is run by a private organization called the New York

Legal Assistance Group (“NYLAG”); it is not part of, or run by, the court (and, among other things,

therefore cannot accept filings on behalf of the court, which must still be made by any pro se party

through the Pro Se Intake Unit).

To receive limited-scope assistance from the Clinic, Plaintiff may mail a signed retainer and

intake form to the NYLAG Pro Se Clinic at 40 Foley Square, LL22, NY, NY 10007. Once the

paperwork is received, the Clinic will coordinate contact with the litigant. Once the paperwork is

received, it may take up to two weeks for the Clinic to contact the litigant. Copies of the Clinic’s

flyer, retainer, and intake form are attached to this order.

CONCLUSION

The Clerk of Court is directed to add “Captain N” as a Defendant, pursuant to Rule 21 of the

Federal Rules of Civil Procedure.

The Clerk of Court is instructed to issue summonses for NYS DOCCS Commissioner

Anthony Annucci and Correctional Sergeant Joseph, complete the USM-285 forms with the

addresses for these Defendants and deliver all documents necessary to effect service to the U.S.

Marshals Service.

The Clerk of Court is directed to mail a copy of this order and the complaint to the New

York State Attorney General at: 28 Liberty Street, 16th Floor, New York, New York 10005.

Plaintiff is referred to the NYLAG Pro Se Clinic. Copies of the Clinic’s flyer, retainer, and

intake form are attached to this order.

The Clerk of Court is further directed to mail an information package to Plaintiff.

SO ORDERED.

Dated: 8/16/23 :

White Plains, New York (Athy batter

CATHY SEIBEL

United States District Judge

DEFENDANTS AND SERVICE ADDRESSES

NYS DOCCS Commissioner Anthony Annucci

The Harriman State Campus

Albany, New York 12226-2050

Correctional Sergeant Joseph

Sing Sing Correctional Facility

354 Hunter Street

Ossining, New York 10562

Y | A G Since 1990, NYLAG has provided free civil legal services to

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New York ME Legal Assistance Group

Free Legal Assistance for Self-Represented Incarcerated

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e NYLAG Legal Clinic for Pro Se Litigants in The Clinic Can:

Southern District of New York is a free legal

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□ : the Clinic’s advice; (ii) any assistance would be

York, New York, or by following the court’s . □□

i A J □ unreasonably difficult for NYLAG to carry out; or (ii

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