Townsend v. Public Storage, Inc.

Filing 4

ORDER & REPORT-RECOMMENDATION: It is ordered that plaintiff's # 2 MOTION for Leave to Proceed in forma pauperis filed by Nadine Townsend is GRANTED FOR PURPOSES OF FILING ONLY, the # 3 MOTION to Appoint Counsel is DENIED. It is Recommended that the # 1 Complaint filed by Nadine Townsend be DISMISSED WITH PREJUDICE pursuant to 28 USC section 1915(e)(2)(B)(i-ii). (Objections to R&R due by 5/19/2014, Case Review Deadline 5/21/2014), Motion # 2 and # 3 are terminated. Signed by Magis trate Judge Therese Wiley Dancks on 4/30/2014. Signed by Magistrate Judge Therese Wiley Dancks on 4/30/2014. (Attachments: # 1 Unpublished Decision - Brown vs. State Farm, # 2 Unpublished Decision - Johnson vs. DHS-ICE, # 3 Unpublished Decision - Rose vs. Myers, # 4 Unpublished Decision - Townsend vs. L.P. Auto Transport) {Copy of the Order and Report-Recommendation sent to the pro se plaintiff along with copies of the four unreported cases cited therein, by regular mail} (jmb)

Page 1
Slip Copy, 2013 WL 6669232 (W.D.N.Y.)
(Cite as: 2013 WL 6669232 (W.D.N.Y.))

Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.
Joel Jeremiah JOHNSON, Plaintiff,
v.
DHS/ICE, et al., Defendants.
No. 13–CV–0288A(Sr).
Dec. 18, 2013.
Joel Jeremiah Johnson, Batavia, NY, pro se.
Heather A. Giambra, Schroder, Joseph & Associates,
LLP, Buffalo, NY, Raymond A. Cowley, Cox Smith,
McAllen, TX, for Defendants.

detainee at the Buffalo Federal Detention Facility
(“BFDF”), filed a pro se complaint under, inter alia,
Bivens v. Six Unknown Named Agents, 403 U.S. 388,
398, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the
Americans with Disabilities Act (“ADA”), Title III,
42 U.S.C. § 12182 et seq., against defendants,
DHS/ICE (Department of Homeland Security, Immigration and Customs Enforcement),FN1 Michael Phillips, ICE Local Field Office Director, Todd Tryon,
Acting Facilities Director, Lieutenant Cinotti, Detention Officer Hall and Detention Officer Doddy.
Plaintiff paid the filing fee and summonses were issued, and plaintiff proceeded to attempt to serve the
summonses and complaint upon each defendant. Defendants Cinotti, Hall and Doddy have appeared in
this action and their motion for summary judgment is
pending but defendants DHS, ICE, Tryon and Phillips
have not.
FN1. DHS/ICE is one defendant.

DECISION AND ORDER
H. KENNETH SCHROEDER, JR., District Judge.
*1 This case was referred to the undersigned,
pursuant to 28 U.S.C. § 636(b)(1), for all pretrial
matters and to hear and report upon dispositive matters. This matter is now before the Court on plaintiff's
response to the Court's Order directing plaintiff to
show cause why the complaint should not be dismissed as against certain defendants for his failure to
serve said defendants (Docket No. 12) and plaintiff's
motions for the appointment of counsel (Docket Nos.
16–17). For the following reasons, plaintiff is granted
an enlargement of time, pursuant to Fed.R.Civ.P.
4(m), to serve the summons and complaint upon
DHS/ICE, Michael Phillips and Todd Tryon, and
plaintiff's motions for the appointment of counsel are
denied without prejudice.
PROCEDURAL BACKGROUND
Plaintiff, Joel Jeremiah Johnson, an immigration

On July 25, 2013, the Court (Hon. William M.
Skretny) issued an Order directing that plaintiff show
cause why the complaint should not be dismissed as
against DHS/ICE, Phillips and Tryon (“federal defendants”) FN2 based on plaintiff's failure to effect
service upon said defendants pursuant to Fed.R.Civ.P.
4(m). Plaintiff responded to said Order by providing
the Court with copies of “Proof[s] of Service.”
(Docket No. 12.) With respect to ICE, the Proof of
Service indicates that on April 17, 2013, plaintiff
served a “Supervisor,” Mr. Delong, a person plaintiff
claims was designated to accept service on behalf of
ICE; with respect to both DHS and Michael Phillips,
the Proofs of Service indicate that plaintiff served
them by mailing the summons and complaint by certified mail to Phillips on April 17, 2013; and with
respect to Todd Tryon, plaintiff claims that he left the
summons and complaint with someone by the name of
“Johwinker” or “Vohwinker” at the BFDF and that

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 2
Slip Copy, 2013 WL 6669232 (W.D.N.Y.)
(Cite as: 2013 WL 6669232 (W.D.N.Y.))
this individual was a person designated to accept service for Tryon. (Id.)
FN2. The other defendants-Cinotti, Doddy
and Hall-are employees of Valley–Metro
Barbosa Group, a privately owned security
company providing detention officers at
BFDF under a contract with ICE. (Docket
No. 13–4, Defendants' Statement of Undisputed Material Facts in Support of Motion
for Summary Judgment, ¶ ¶ 1–2.)
DISCUSSION
A. Service on Federal Agencies and Employees:
Rule 4(i)
Pursuant to Fed.R.Civ.P. 4(i)(2), in order to serve
a federal agency (DHS, ICE) or an employee sued in
an official capacity, “a party must serve the United
States FN3 and also send a copy of the summons and
complaint by registered or certified mail to the agency,
corporation, officer, or employee.”
FN3. To serve the United States, a party
must:

nonparty agency or officer of the United
States, send a copy of each by registered or
certified mail to the agency or officer.
*2 Pursuant to Fed.R.Civ.P. 4(i)(3), in order to
serve an officer or employee sued individually (Phillips and Tryon) “for an act or omission occurring in
connection with duties performed on the United
States' behalf (whether or not the officer or employee
is also sued in an official capacity), a party must serve
the United States and also serve the officer or employee under Rule 4(e), (f), or (g).” FN4
FN4. Fed.R.Civ.P. 4(e), Serving an Individual Within a Judicial District of the United
States, provides::
(e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual-other than a minor, an incompetent person, or a person whose waiver has
been filed-may be served in a judicial district of the United States by:

(A) (i) deliver a copy of the summons and
of the complaint to the United States attorney for the district where the action is
brought-or to an assistant United States
attorney or clerical employee whom the
United States attorney designates in a
writing filed with the court clerk-or

(1) following state law for serving a
summons in an action brought in courts of
general jurisdiction in the state where the
district court is located or where service is
made; or

(ii) send a copy of each by registered or
certified mail to the civil-process clerk at
the United States attorney's office;

(A) delivering a copy of the summons and
of the complaint to the individual personally;

(B) send a copy of each by registered or
certified mail to the Attorney General of
the United States at Washington, D.C.; and

(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

(2) doing any of the following:

(C) if the action challenges an order of a

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 3
Slip Copy, 2013 WL 6669232 (W.D.N.Y.)
(Cite as: 2013 WL 6669232 (W.D.N.Y.))
(C) delivering a copy of each to an agent
authorized by appointment or by law to
receive service of process.
Based on the Proofs of Service submitted by
plaintiff, it is clear that defendants DHS/ICE, Phillips
and Tryon have not been served properly pursuant to
Rule 4(i)(2)-(3). First, there is no proof that plaintiff
served the United States, pursuant to Rule 4I(i)(1),
which is required for serving both an agency of the
United States and an officer or employee sued in either
or both his official or individual capacity. Fed.
R.Civ.P. 4(i)(2)-(3). Specifically, there in no proof
that (A) plaintiff “deliver[ed]” a copy of the summons
and complaint to the United State Attorney for the
Western District of New York or sent a copy of the
summons and complaint by registered or certified mail
to the civil process clerk at the United States Attorney's Office; and (B) sent a copy of the summons and
complaint by registered or certified mail to the Attorney General of the United States in Washington,
D.C. Service on the United States as set forth in Rule
4(i)(1) is required for proper service on both a federal
agency and an officer or employee. Id., 4(i)(2)-(3). As
to DHS/ICE and Phillips, the Proofs of Service indicate that plaintiff sent the summons and complaint by
certified mail to Phillips. Plaintiff, however, did not
serve the United States as required. As to Tryon, not
only did plaintiff fail to serve the United States, see
Fed.R.Civ.P. 4(i)(1)(A)(B), he also failed to serve
Tryon properly pursuant to Rule 4(e). There is no
evidence that the individual plaintiff claimed to have
“left” and “served” the summons and complaint on,
Vohwinker or Johwiner, was an individual designated
to accept service on behalf of Tryon. (Docket No. 12.)
Accordingly, plaintiff has not established that he
properly served any of the federal defendants.
B. Enlarge Time to Serve Summons and Complaint: Rule 4(m)
Rule 4(m) provides that if a defendant is not
served within 120 days after the complaint is filed,
“the court-on motion or on its own after notice to the

plaintiff-must dismiss the action without prejudice
against that defendant or order that service be made
within a specified time.” The Court, however, “shall”
extend the time for service for an appropriate period of
time if the plaintiff shows “good cause” for the failure
to serve the defendant within 120 days. Fed.R.Civ.P.
4(m). District courts also have discretion to enlarge
the 120–day period even in the absence of good cause.
See Zapata v. City of New York, 502 F.3d 192, 196–67
(2d Cir.2007).
The Court notes that a prisoner or immigration
detainee generally proceeds in forma pauperis in this
Court and is therefore entitled automatically to service
of the summons and complaint by the United States
Marshals Service. See Fed.R.Civ.P. 4(c)(3); 28 U.S.C.
§ 1915(d). In those situations, the plaintiff is entitled
to rely on the Marshals Service to perfect service and
“good cause” under Rule 4(m) is shown when plaintiff
provides proper instructions to the Marshals Service-i.e., properly identifies the defendant-to personally serve the summons and complaint upon the defendant and the Marshals Service fails to serve the
defendant. Romandette v. Weetabix, 807 F.2d 309, 311
(2d Cir.1986); see also Murray v. Pataki, 378
Fed.Appx. 50, 2010 WL 2025613, at *2 (2d Cir. May
24, 2008) (Summary Order) (“As long as the pro se
prisoner 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).”)
(citations omitted)).
*3 For those pro se individuals not proceeding in
forma pauperis and thus not entitled to Marshals Service automatically, they may seek an order from the
Court directing the Marshals Service to serve the
defendant(s) for a fee. See Fed.R.Civ.P. 4(c)(3). The
granting of such an order is discretionary with the
Court. It is the general practice of the Clerk of Court
that at the time of filing of a complaint and paying of
the filing fee, a pro se litigant is provided a Notice
Regarding Service of Summons and Complaint pur-

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 4
Slip Copy, 2013 WL 6669232 (W.D.N.Y.)
(Cite as: 2013 WL 6669232 (W.D.N.Y.))
suant to Rule 4(m) and a form motion requesting the
Court to order Marshals Service. In this case, the
Docker Report notes that summonses were issued to
plaintiff and that he was forwarded the Clerk's Office's
Notice. Plaintiff did not seek Marshals Service and
attempted to serve the summonses and complaints on
his own. He, however, failed to serve the federal defendants properly.
As noted, if service is not made within 120 days
the Court shall dismiss the action without prejudice as
to that defendant or “direct that service be effected
within a specified time.” Fed.R.Civ.P. 4(m). The
Court shall enlarge the time to serve the summons and
complaint upon a showing of good cause, and that the
Court has discretion to enlarge the time in the absence
of good cause. While there is “an obligation on the
part of the court to make reasonable allowances to
protect pro se litigants from inadvertent forfeiture of
important rights because of their lack of legal training
... such protection ‘does not exempt a party from
compliance with relevant rules of procedural and
substantive law....’ “ Sellers v. Royal Bank of Canada,
2013 WL 1222668, at *1 (S.D.N.Y., March 21, 2013)
(citing and quoting Traguth v. Zuck, 710 F.2d 90, 95
(2d Cir.1983)). Moreover, ignorance of the law, even
on the part of a pro se litigant, is not “good cause”
under Rule 4(m). Amnay v. Del Labs, 17 F.Supp.2d
283, 285 (E.D.N.Y.2000).
Here, while plaintiff's ignorance of the manner in
which he had to serve the federal defendants may not
establish good cause under 4(m), the Court does have
discretion to extend the time to serve the summons.
Zapata, 502 F.3d at 196; see also DeLuca v. AccessIT
Group, Inc., 695 F.Supp.2d 54, 67 (S.D.N.Y., Feb.9,
2010) (“A Court has discretion to grant an extension to
serve process even absent a showing of good cause.”)
In determining whether to exercise this discretion, the
Court should consider the following factors: “ ‘(1)
whether the applicable statute of limitations would bar
the refiled action; (2) whether the defendant had actual
notice of the claims asserted in the complaint; (3)

whether the defendant had attempted to conceal the
defect in service; and (4) whether the defendant would
be prejudiced by the granting of plaintiff's request for
relief from the provision.’ ” Jordan v. Forfeiture
Support Associates, 928 F.Supp.2d 588, 598
(E.D.N.Y., March 5, 2013) (quoting Carroll v. Certified Moving & Storage, Co., 2005 WL 1711184, at *2
(E.D.N.Y. July 19, 2005) (internal quotation marks
omitted)). The Court finds that a review of these factors weighs in favor of granting an enlargement of
time under Rule 4(m).
*4 The first factor is the only factor that weighs
against enlarging plaintiff's time to serve the summons
and complaint. The statute of limitations for plaintiff's
Bivens and ADA claims is three years. See Tapia–
Ortiz v. Doe, 171 F.3d 150, 151 (2d Cir.1999)
(Bivens); Chisholm v. United of Omaha Life Ins. Co.,
514 F.Supp.2d 318 (D.Conn., 2007) (ADA, Title
III).FN5 Plaintiff's claims accrued on December 19,
2012, when he alleges that he was being transported
from BFDF to ICE's offices in Buffalo, New York on
an ICE bus and ordered to use a wheelchair he had not
used before. The wheelchair did not contain proper
safety equipment to secure its wheels on the bus and to
strap plaintiff in the wheelchair and that, upon the
return trip to BFDF, defendant Hall was driving to fast
and plaintiff fell out of the chair and struck his head
and body thereby causing serious injury. (Docket No.
1, Complaint, at ¶ ¶ 8–10.) The statute of limitations
has not expired and therefore if the complaint were to
be dismissed against the federal defendants, plaintiff
would still have an opportunity to re-file his claims
against the federal defendants.
FN5. The Court notes that the facts alleged
may support a tort claim against the United
States pursuant to the Federal Tort Claims
Act, 28 U.S.C. § § 1346(b)(1); 2401(b),
provided that the plaintiff presented [the
claim] in writing to the appropriate Federal
agency within two years after such claim
accrues....” Id., § 2401(b). See Accolla v.

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 5
Slip Copy, 2013 WL 6669232 (W.D.N.Y.)
(Cite as: 2013 WL 6669232 (W.D.N.Y.))
United States Government, 381 Fed.Appx.
71, 2010 WL 2511566, at * (2d Cir. June 22,
2010) (Summary Order) (“The statute provides that ‘a tort claim against the United
States shall be forever barred unless it is
presented in writing to the appropriate Federal agency within two years after such claim
accrues....' An FTCA claim accrues at the
time of the plaintiff's injury ....”) (citiations
omitted)).
Plaintiff has not set forth a claim under the
FTCA in the complaint nor does he allege
that he presented such a claim to DHS/ICE.
As noted, the statute of limitations for
presenting such an administrative claim
with the applicable federal agency is two
years from the date of the injury. See 28
U.S.C. § 2401(b).
Second, while plaintiff did not properly serve the
federal defendants, he did at least provide them or
representatives of DHS/ICE with copies of the summons and complaint in different ways. He forwarded
to Phillips, ICE's Field Officer Director, a copy of the
summons and complaint by certified mail, and he
provided to a “supervisor” at BFDF the summons and
complaint on behalf of Tryon. It thus cannot be said
that the federal defendants did not have notice of this
claim. The third factor is not applicable or, at least,
does not appear to be applicable. The fourth factor
also supports granting an enlargement of time because
while any defendant “will be burdened with the obligation to defend this lawsuit if the extension is
granted, ... that does not rise to the level of prejudice
necessary to tip the balance of this factor in [defendant's] favor.” Lumbermens Mut. Cas. Co. v. Dinow,
2009 WL 2424198, at *4 (E.D.N.Y. Aug.6, 2009).
It is worth noting that while plaintiff's ignorance
of Rule 4(i)'s requirements regarding service on a
federal agency and officer or employee may not constitute good cause under 4(m), he did make what ap-

pears to be a good faith effort to serve the federal
defendants. Accordingly, the Court finds that upon a
review of the factors set forth above, plaintiff is
granted a 60–day enlargement of time to serve the
summons and complaint upon the federal defendants.
C. Motions for Appointment of Counsel
Plaintiff moves for the appointment of counsel
and submits, inter alia, that he cannot afford an attorney and that the legal issues in his case are “very
complicated.” (Docket Nos. 16–17.) The Court find
that, at this time, the appointment of counsel is not
warranted.
Plaintiff has applied to the Court for appointment
of counsel pursuant to 28 U.S.C. § 1915(e). There is
no constitutional right to appointed counsel in civil
cases. However, under 28 U.S.C. § 1915(e), the Court
may appoint counsel to assist indigent litigants. See,
e.g., Sears, Roebuck & Co. v. Charles W. Sears Real
Estate, Inc., 865 F.2d 22, 23 (2d Cir.1988). Assignment of counsel in this matter is clearly within the
judge's discretion. In re Martin–Trigona, 737 F.2d
1254 (2d Cir.1984). The factors to be considered in
deciding whether or not to assign counsel include the
following:
*5 1. Whether the indigent's claims seem likely to
be of substance;
2. Whether the indigent is able to investigate the
crucial facts concerning his claim;
3. Whether conflicting evidence implicating the
need for cross-examination will be the major proof
presented to the fact finder;
4. Whether the legal issues involved are complex;
and
5. Whether there are any special reasons why appointment of counsel would be more likely to lead

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 6
Slip Copy, 2013 WL 6669232 (W.D.N.Y.)
(Cite as: 2013 WL 6669232 (W.D.N.Y.))
to a just determination.
Hendricks v. Coughlin, 114 F.3d 390, 392 (2d
Cir.1997); see also Hodge v. Police Officers, 802 F.2d
58 (2d Cir.1986).
The Court must consider the issue of appointment
carefully, of course, because “every assignment of a
volunteer lawyer to an undeserving client deprives
society of a volunteer lawyer available for a deserving
cause.” Cooper v. A. Sargenti Co., 877 F.2d 170, 172
(2d Cir.1989). Therefore, the Court must first look to
the “likelihood of merit” of the underlying dispute,
Hendricks, 114 F.3d at 392; Cooper, 877 F.2d at 174,
and “even though a claim may not be characterized as
frivolous, counsel should not be appointed in a case
where the merits of the ... claim are thin and his
chances of prevailing are therefore poor.” Carmona v.
United States Bureau of Prisons, 243 F.3d 629, 632
(2d Cir.2001) (denying counsel on appeal where petitioner's appeal was not frivolous but nevertheless
appeared to have little merit).
The Court has reviewed the facts presented herein
in light of the factors required by law and finds that the
appointment of counsel is not warranted at this time.
As noted, plaintiff alleges that the defendants violated
his constitutional rights and Title III of the ADA when
he was transported in an unsafe manner and this
caused him to fall out of a wheelchair. The claims are
brought against both federal defendants and three
employees of a private contractor. The private contractor employees have brought a motion for summary
judgment on the bases that as employees of private
contractors they are not subject to suit under Bivens,
see Minecci v. Pollard, ––– U.S. ––––, 132 S.Ct. 671
(2012), and that the allegations of the complaint do not
establish that Title III of ADA applies to the facts of
this case. (Docket No. 13–3, Memorandum of Law).
Accordingly, plaintiff's motion for appointment of
counsel is denied without prejudice. It is the plaintiff's
responsibility to retain an attorney or press forward
with this lawsuit pro se. 28 U.S.C. § 1654.

CONCLUSION
For the foregoing reasons, (1) plaintiff is granted
a 60–day enlargement of time, pursuant to
Fed.R.Civ.P. 4(m), to serve the summons and complaint upon defendants DHS/ICE, Michael Phillips
and Todd Tryon as set forth in Fed.R.Civ.P. 4(I), and
(2) plaintiff's motions for appointment of counsel
(Docket No. 16–17) are denied. Plaintiff is advised
that if he does not properly serve the federal defendants within 60–days of entry of this Decision and
Order the complaint will be dismissed against them
without prejudice.
*6 The Clerk of the Court is directed to forward to
plaintiff along with this Order the Clerk's Office's
Notice Regarding Service of Summons and Complaint
with Attached Request for U.S. Marshal Service.
SO ORDERED.
W.D.N.Y.,2013.
Johnson v. DHS/ICE
Slip Copy, 2013 WL 6669232 (W.D.N.Y.)
END OF DOCUMENT

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.