Powell Bey v. Nassau County District Attorney's Office et al

Filing 16

ORDER: For the reasons stated in the attached memorandum and order, the complaint is dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m). Ordered by Judge Rachel P. Kovner on 5/10/2022. (JB)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------x
DARNEL POWELL BEY,
MEMORANDUM AND ORDER

Plaintiff,
v.

21-CV-5714 (RPK) (PK)

NASSAU COUNTY DISTRICT ATTORNEY’S
OFFICE; ACTING DA JOYCE A. SMITH,
Nassau County; ADA ASHLEY N. PRINZ,
Nassau County,
Defendants.
---------------------------------------------------------x
RACHEL P. KOVNER, United States District Judge:
Pro se plaintiff Darnel Powell Bey brings this action against the Nassau County District
Attorney’s Office, Acting District Attorney Joyce A. Smith, and Assistant District Attorney
Ashley N. Prinz. Despite filing his complaint on October 6, 2021, and receiving numerous
warnings from the Court, see Jan. 21, 2022 Order; Feb. 15, 2022 Order, Bey still has not
properly served defendants. For the reasons stated below, the Court declines to further extend
the time for Bey to effect proper service and dismisses this case without prejudice pursuant to
Federal Rule of Civil Procedure 4(m).
DISCUSSION
Because plaintiff has not properly served defendants and an extension of time to effect
service is not warranted, this case is dismissed without prejudice.
I.

Plaintiff Has Not Properly Served Defendants
Plaintiff has not properly served Smith, Prinz, or the Nassau County District Attorney’s
Office.
As an initial matter, plaintiff’s attempted service on defendants is defective because
plaintiff did not serve a summons on them. The Federal Rules of Civil Procedure require a
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summons to be served “with a copy of the complaint.” Fed. R. Civ. P. 4(c)(1). But plaintiff does
not appear to have ever prepared a summons for the Clerk of Court to sign, seal, and issue, see
Fed. R. Civ. P. 4(b), and none of the certificates and affidavits of service filed by plaintiff
mention a summons, see Certificate of Service (Dkt. #7-1); Certificate of Service (Dkt. #8);
Certificate of Service (Dkt. #9-1); Feb. 14, 2022 Letter (Dkt. #10); Aff. of Service (Dkt. #11).
Therefore, plaintiff has failed to properly serve defendants. See Bloom v. Democratic Nat’l
Comm., No. 01-CV-11598 (RWS), 2002 WL 31496272, at *2 (S.D.N.Y. Nov. 6, 2002) (service
“fatally defective” where no summons served); Trs. of the United Plant & Prod. Workers Local
175 Benefits Fund v. Mana Constr. Grp., Ltd., No. 18-CV-4269 (JS) (ARL), 2021 WL 4150803,
at *3 (E.D.N.Y. July 30, 2021) (collecting cases), report and recommendation adopted, 2021
WL 4147421 (E.D.N.Y. Sept. 13, 2021); Boahen v. Trifiletti, No. 18-CV-171 (VLB), 2019 WL
688412, at *5 (D. Conn. Feb. 19, 2019).
Setting aside plaintiff’s failure to serve a summons, plaintiff’s service of the complaint on
defendants was improper.
Plaintiff does not specify whether he sues Smith and Prinz in their personal capacities,
official capacities, or both. Regardless, plaintiff has failed to effect proper service on Smith and
Prinz. There are different requirements for serving process on a person sued in her personal and
official capacities. “A suit against an individual in [her] personal capacity is not a suit against
the governmental entity,” whereas “[a] claim asserted against an individual in [her] official
capacity . . . is in effect a claim against the governmental entity itself.” Lore v. City of Syracuse,
670 F.3d 127, 164 (2d Cir. 2012) (internal citation omitted). Accordingly, Federal Rule of Civil
Procedure 4(j)(2), which governs service of process to a state agency or local government,
specifies how process must be served on persons in their official capacity. See Rutherford v. Fla.

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Union Sch. Dist., No. 16-CV-9778 (KMK), 2018 WL 11249126, at *3 (S.D.N.Y. Oct. 24, 2018);
Sun v. Cuomo, No. 19-CV-497 (MAD) (DJS), 2019 WL 5307359, at *2 n.1 (N.D.N.Y. Oct. 21,
2019); Stoianoff v. Comm’r of Motor Vehicles, No. 99-7363, 2000 WL 287720, at *1 (2d Cir.
2000) (summary order). Rule 4(e) provides the requirements for service upon individuals. Sun,
2019 WL 5307359, at *2; Stoianoff, 2000 WL 287720, at *1.
Plaintiff has not demonstrated that he properly served Smith and Prinz in their official
capacities. While district attorneys are generally presumed to be local county officers under
New York law, district attorneys are state officers when making the determination whether to
prosecute a criminal matter. See DeJean v. Cnty. of Nassau , No. 06-CV-6317 (SJF) (AKT),
2008 WL 111187, at *3 (E.D.N.Y. Jan. 8, 2008). Under Federal Rule of Civil Procedure 4(j)(2),
a state or local government “must be served by . . . (A) delivering a copy of the summons and of
the complaint to its chief executive officer” or “(B) serving a copy of each in the manner
prescribed by that state’s law for serving a summons or like process on such a defendant.” Fed.
R. Civ. P. 4(j)(2). New York law provides that personal service on a state officer “sued solely in
an official capacity . . . shall be made by (1) delivering the summons to such officer or to the
chief executive officer of such agency or to a person designated by such chief executive officer
to receive service, or (2) by mailing the summons by certified mail . . . to such officer or to the
chief executive officer of such agency, and by personal service upon the state” by delivering the
summons to an assistant attorney general at an office of the Attorney General or to the Attorney
General within the state. N.Y. C.P.L.R. § 307(1); id. § 307(2). As to service on a county, New
York law provides that personal service shall be made by delivering the summons to the county's
“chair or clerk of the board of supervisors, clerk, attorney or treasurer.” Id. § 311(a)(4). Service
on Nassau County therefore requires delivery of the summons to "the Nassau County Attorney,

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not the Nassau County DA.” Dippell v. Cnty. of Nassau, No. 15-CV-2548 (JMA) (GRB), 2016
WL 1267167, at *1 (E.D.N.Y. Mar. 31, 2016).
Plaintiff's attempt to serve Smith and Prinz do not meet those requirements. Plaintiff has
filed numerous certificates and affidavits of service. See Certificate of Service (Dkt. #7-1);
Certificate of Service (Dkt. #8); Certificate of Service (Dkt. #9-1); Feb. 14, 2022 Letter; Aff. of
Service (Dkt. #11). Those documents merely indicate that the complaint was mailed to Smith at
what appears to be the address for the Nassau County District Attorney’s Office, see Certificate
of Service 2 (Dkt. #7-1) (ECF pagination); see also Certificate of Service (Dkt. #8) (mailing
copy of motion for preliminary injunction to Smith at same address); Certificate of Service (Dkt.
#9-1) (mailing motion for default judgment to Smith and Prinz at same address), and that service
was later attempted on Smith and Prinz by delivery to a “[r]eceptionist/[s]ecretary” named Maria
Sanchez at the same address, Aff. of Service (Dkt. #11). Plaintiff also attempted service by
mailing the complaint by certified mail in an envelope marked in all capital letters “urgent legal
mail” to the New York Attorney General. See Feb. 14, 2022 Letter 25 (ECF pagination).
To the extent that plaintiff sues Smith and Prinz as officers of New York, plaintiff does
not suggest that the receptionist at the Nassau County District Attorney’s Office who received
the complaint is a person “designated . . . to receive service,” N.Y. C.P.L.R. § 307(2), and
plaintiff failed to “deliver[] the summons to an assistant [attorney general] at an office of the
[Attorney General] or to the [Attorney General]” as required when attempting service on the
State by certified mail, id. § 307(1); see id. § 307(2). And for substantially similar reasons,
plaintiff failed to serve Smith and Prinz as officers of Nassau County.
Nor has plaintiff shown that he properly served Smith and Prinz in their personal
capacities. Federal Rule of Civil Procedure 4(e) provides that an individual may be served by

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“(A) delivering a copy of the summons and of the complaint to the individual personally; (B)
leaving a copy of each at the individual's dwelling or usual place of abode with someone of
suitable age and discretion who resides there; or (C) delivering a copy of each to an agent
authorized by appointment or by law to receive service of process.” Fed. R. Civ. P. 4(e)(2). An
individual may also be served in any manner permitted by state law. Fed. R. Civ. P. 4(e)(1). In
addition to personal service, New York law allows service on an individual by a combination of
delivery to the individual’s place of business and mail. See N.Y. C.P.L.R. § 308(2).
As discussed above, plaintiff has not established that he delivered a copy of the summons
and the complaint to Smith and Prinz or left a copy of each at their dwellings. See Fed. R. Civ.
P. 4(e)(2)(A)-(B); Sikhs for Justice v. Nath, 850 F. Supp. 2d 435, 440 (S.D.N.Y. 2012). And
plaintiff’s attempt to deliver the complaint to the Nassau County District Attorney’s Office did
not qualify as delivering a copy to an agent authorized to receive service of process for Smith or
Prinz as an individual, see Fed. R. Civ. P. 4(e)(2)(C). “Plaintiff has provided no evidence that
[Smith or Prinz] designated [Sanchez] to receive service of process on [their] behalf[s] pursuant
to [New York law], [and] . . . [p]laintiff [has not] even suggested that such authorization exists.”
Baity v. Kralik, 51 F. Supp. 3d 414, 430 (S.D.N.Y. 2014). Nor has plaintiff suggested that
Sanchez represented that she was authorized to accept service for Smith or Prinz in their
individual capacities or that they knew about such a representation. See ibid. Plaintiff has
therefore failed to show that he served Smith and Prinz as provided by Federal Rule of Civil
Procedure 4(e)(2).
Nor has plaintiff demonstrated proper service of Smith and Prinz under the New York
provision allowing service by a combination of personal delivery to a place of business and mail.
See N.Y. C.P.L.R. § 308(2). That provision allows service by delivery of the summons and

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complaint “to a person of suitable age and discretion at the [defendant's] actual place of
business” but requires that they also be mailed to the recipient’s “last known residence” or
“actual place of business.” Ibid. If the documents are sent to the person’s business, they must be
mailed “by first class mail . . . in an envelope bearing the legend ‘personal and confidential’ and
not indicating on the outside thereof . . . that the communication is from an attorney or concerns
an action against the person to be served.” Ibid. Plaintiff has provided no evidence that a proper
summons was mailed to defendants or that the mail sent to the Nassau County District
Attorney’s Office was sent first class and marked as required by New York law. See Certificate
of Service (Dkt. #7-1); Certificate of Service (Dkt. #8); Certificate of Service (Dkt. #9-1); Feb.
14, 2022 Letter; Aff. of Service (Dkt. #11). Plaintiff has therefore failed to show that he effected
service on Smith or Prinz under Section 308(2). See Valle v. GDT Enters., Inc., No. 19-CV-797
(SJF) (AKT), 2020 WL 435295, at *2-*4 (E.D.N.Y. Jan. 28, 2020); Assets Recovery 23, LLC v.
Gasper, No. 15-CV-5049 (RJD) (CLP), 2018 WL 5849763, at *6-*10 (E.D.N.Y. Sept. 11, 2018),
report and recommendation adopted, 2018 WL 5847102 (E.D.N.Y. Nov. 8, 2018); Stair v.
Calhoun, No. 12-CV-6121 (SJF) (SIL), 2015 WL 1476454, at *7-*8 (E.D.N.Y. Mar. 31, 2015),
appeal dismissed, 2017 WL 5197132 (2d Cir. 2017).
Finally, plaintiff has not properly served the summons and complaint on the Nassau
County District Attorney’s Office. As I explained, plaintiff has not delivered a copy of the
summons and complaint to the chief executive officer of the Nassau County District Attorney’s
Office, as he must under Rule 4(j)(2)(A). See Fed. R. Civ. P. 4(j)(2)(A). Nor has he delivered
the summons and complaint to a person designated to receive service, an assistant attorney
general, the New York Attorney General, or the Nassau County Attorney as he must to effect
service under state law. See N.Y. C.P.L.R. § 307(1)-(2); Dippell, 2016 WL 1267167, at *1.

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For those reasons, plaintiff has failed to properly serve defendants.
A.

An extension of time to serve defendants is not warranted.

I decline to extend plaintiff’s time to serve defendants.
1. Good Cause
Under Rule 4(m), “[i]f a defendant is not served within 90 days after the complaint is
filed,” the court “must dismiss the action without prejudice against that defendant or order that
service be made within a specified time.” Fed. R. Civ. P. 4(m). If a plaintiff shows “good cause
for the failure,” then “the court must extend the time for service for an appropriate period.” Ibid.
“Good cause is generally found only in exceptional circumstances where the plaintiff’s failure to
serve process in a timely manner was the result of circumstances beyond [plaintiff’s] control.”
Jordan v. Forfeiture Support Assocs., 928 F. Supp. 2d 588, 597 (E.D.N.Y. 2013) (citation
omitted). In determining whether good cause exists, courts consider “(1) the diligence and
reasonableness of the plaintiff's efforts to serve, and (2) prejudice to the defendants from the
delay.” Tolchin v. Cnty. of Nassau, 322 F. Supp. 3d 307, 311 (E.D.N.Y. 2018), aff’d, 768 F.
App’x 60 (2d Cir. 2019).
Plaintiff has not shown good cause for his delay here. He has identified no exceptional
circumstances beyond his control that caused his attempts at service to fail. Jordan, 928 F. Supp.
2d at 598. Plaintiff has been on notice of his failure to serve defendants since at least January
21, 2022, when the Court first warned plaintiff that defendants did not appear to have been
served. See Jan. 21, 2022 Order. On that date, the Court ordered plaintiff to show good cause for
his failure to serve defendants, but instead, plaintiff filed a certificate of service reflecting
improper service. See Certificate of Service (Dkt. #7-1). The Court gave plaintiff another
warning on February 15, 2022, that plaintiff’s attempts at service were defective and ordered
plaintiff to show good cause for his failure to serve defendants. See Feb. 15, 2022 Order. Both of
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those warnings also notified plaintiff that in the absence of good cause, the Court would likely
dismiss the action pursuant to Federal Rule of Civil Procedure 4(m). See Nagy v. Dwyer, 507
F.3d 161, 164 (2d Cir. 2007) (noting that Rule 4(m) requires notice to plaintiff before sua sponte
dismissal of an action for failure to timely serve defendants). But plaintiff has still not properly
served defendants or offered any explanation for why he has not done so. See Obot v. Citibank
S.D., N.A., No. 04-CV-784A, 2006 WL 6905256, at *3 (W.D.N.Y. Oct. 17, 2006) (“As part of
the determination of good cause for delay in service, courts have looked at the length of time it
has taken to effect proper service after receipt of notice of a possible defect.”), aff'd, 347 F.
App’x 658 (2d Cir. 2009). Instead, plaintiff simply continues to assert that he has properly
served defendants, notwithstanding the Court’s repeated warnings that he has not. See Feb. 14,
2022 Letter 1. Finally, plaintiff’s pro se status “is no excuse for failure to serve the defendant
properly and does not automatically amount to good cause.” Jordan, 928 F. Supp. 2d at 598
(citation omitted); see Kogan v. Facebook, Inc., 334 F.R.D. 393, 403 (S.D.N.Y. 2020); see also
Edwards v. I.N.S., 59 F.3d 5, 8 (2d Cir. 1995) (“[P]ro se litigants generally are required to inform
themselves regarding procedural rules and to comply with them.”). Accordingly, plaintiff has not
established good cause for his failure to properly serve defendants.
2. Discretionary Exception
“[A] district court may grant an extension in the absence of good cause, but it is not
required to do so.” Zapata v. City of New York, 502 F.3d 192, 197 (2d Cir. 2007) (emphasis
omitted); see Counter Terrorist Grp. U.S. v. N.Y. Mag., 374 F. App’x 233, 234-35 (2d Cir. 2010)
(summary order). To benefit from a discretionary extension, “the plaintiff must ordinarily
advance some colorable excuse for neglect.” Zapata, 502 F.3d at 198. At that point, “courts in
this Circuit generally consider four factors: (1) whether any applicable statutes of limitations
would bar the action once re-filed; (2) whether the defendant[s] had actual notice of the claims
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asserted in the complaint; (3) whether defendant[s] attempted to conceal the defect in service;
and (4) whether defendant[s] would be prejudiced by extending plaintiff’s time for service.”
Vaher v. Town of Orangetown, 916 F. Supp. 2d 404, 420 (S.D.N.Y. 2013) (quotations omitted).
Here, I decline to exercise my discretion to grant an extension without good cause.
Plaintiff has not offered a colorable excuse for his neglect.

Cf. Zapata, 502 F.3d at 199

(affirming denial of extension of time to serve where plaintiff “neglected to ask for an extension
within a reasonable period of time, and ha[d] advanced no cognizable excuse for the delay”).
Further, plaintiff has never effected proper service on the defendants or asked for an extension of
time to do so. Cf. Carl v. City of Yonkers, No. 04-CV-7031 (SCR), 2008 WL 5272722, at *7
(S.D.N.Y. Dec. 18, 2008) (declining to extend time to serve in part because plaintiff's pro se
attempt at service was unsuccessful and plaintiff failed to seek any extension of time), aff'd, 348
F. App’x 599 (2d Cir. 2009); Bogle-Assegai v. Connecticut, 470 F.3d 498, 508-09 (2d Cir. 2006);
Stewart v. City of New York, No. 06-CV-15490, 2008 WL 1699797 (RMB) (FM), at *7
(S.D.N.Y. Apr. 9, 2008). Moreover, plaintiff has not argued or provided evidence that the Vaher
factors are satisfied. Instead, plaintiff appears to argue that his pro se status should excuse his
failure to effect service. See Feb. 14, 2022 Letter 1. But the fact that plaintiff is unrepresented
alone does not tilt the Vaher factors in his favor. Cf. Jones v. Westchester Cnty., 182 F. Supp. 3d
134, 145 (S.D.N.Y. 2016) (finding two Vaher factors “coupled with [p]laintiff’s pro se status[]
weigh[ed] strongly in favor of an extension”); see also Edwards, 59 F.3d at 8. Considering the
factors commonly weighed in deciding whether to grant a discretionary extension, I decline to
extend plaintiff's time to serve.

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CONCLUSION
The complaint is dismissed without prejudice pursuant to Federal Rule of Civil Procedure
4(m).
SO ORDERED.
/s/ Rachel Kovner
RACHEL P. KOVNER
United States District Judge
Dated: May 10, 2022
Brooklyn, New York

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