Avent v. Estervez et al

Filing 10

ORDER OF SERVICE: The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package. An amended complaint form is attached to this order. The Clerk of Court is further instructed to (1) substitute Parole Officer L. Esteves for Defendants "Parole Officer Estervez" and "Parole Officer Estevez"; (2) substitute Senior Parole Officer A. Tucker for the unknown senior parole officer; (3) complete the USM-285 forms with the addresse s for Defendants Parole Officer L. Esteves and Senior Parole Officer A. Tucker, and deliver to the U.S. Marshals Service all documents necessary to effect service; and (4) mail a copy of this order and the complaint to the Attorney General for t he State of New York at the following address: Office of the Attorney General 28 Liberty Street New York, NY 10005. Defendants: A. Tucker added. Estevez terminated. (Signed by Judge Andrew L. Carter, Jr on 10/16/2020) (js) Transmission to Pro Se Assistants for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

October 16, 2020

REUBEN AVENT,
Plaintiff,
-against-

20-CV-1197 (ALC)

P.O. ESTERVEZ; UNKNOWN SENIOR
PAROLE OFFICER; UNKNOWN PAROLE
DIRECTOR; P.O. ESTEVEZ,

ORDER OF SERVICE

Defendants.
ANDREW L. CARTER, JR., United States District Judge:
Plaintiff, currently on post-release supervision pursuant to the 2009 resentencing on his
2001 Rockland County conviction, brings this action pro se. By order dated February 13, 2020,
the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma
pauperis (IFP). 1
DISCUSSION
A.

Service on Parole Officer and Senior Parole Officer
Plaintiff’s claims against many of the defendants named in the caption were severed from

this action (ECF No. 8) and opened under separate docket numbers, Avent v. Meilunas, No. 20CV-0908 (N.D.N.Y.) (claims against Parole Officers Meilunas, Arthur, Coons, Briggs, and John
Doe transferred to the Northern District of New York); Avent v. NYS Div. of Parole, No. 20-CV6275 (LLS) (S.D.N.Y.) (challenge to 2009 resentencing characterized as petition for a writ of
habeas corpus under 28 U.S.C. § 2254 but dismissed without prejudice for Plaintiff’s failure to
respond). The remaining defendants listed in the caption include Parole Officer Estervez and

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Prisoners are not exempt from paying the full filing fee even when they have been
granted permission to proceed in forma pauperis. See 28 U.S.C. § 1915(b)(1).

Parole Officer Estevez, but only Parole Officer Estervez is mentioned in the body of the
complaint, and thus it appears that Plaintiff intends to refer only to one person. Moreover,
according to public records of the New York State Division of Parole (DOP), Plaintiff’s parole
officer is Parole Officer L. Esteves. The Court therefore directs the Clerk of Court to substitute
Parole Officer L. Esteves as a defendant for Defendants Estervez and Estevez.
Plaintiff also sues an “unknown Senior Parole Officer.” According to public records of
the DOP, the Senior Parole Officer supervising Plaintiff is A. Tucker. The Court therefore directs
the Clerk of Court to substitute Senior Parole Officer A. Tucker for “unknown Senior Parole
Officer.”
Because Plaintiff has been granted permission to proceed IFP, Plaintiff 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 summons and complaint until the Court reviewed
the complaint and ordered that a summons be issued. The Court therefore extends the time to
serve until 90 days after the date the summons is 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

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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 Parole Officer L. Esteves and Senior
Parole Officer A. Tucker 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 a summons 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 Plaintiff’s address changes, and the Court may
dismiss the action if Plaintiff fails to do so.
B.

John or Jane Doe Parole Director
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
sufficient information to permit the Attorney General for the State of New York to identify the
John or Jane Doe Parole Director at the New York State Division of Parole Manhattan II Area
Office, who was allegedly involved in the violations of Plaintiff’s rights on January 8, 2019. It is
therefore ordered that the Attorney General for the State of New York, who is the attorney for
and agent of the New York State Division of Parole, shall ascertain the identity of the John or
Jane Doe Parole Director whom Plaintiff seeks to sue here and the address where the defendant
may be served. The Attorney General for the State of New York must provide this information to
Plaintiff and the Court within sixty days of the date of this order.
Within thirty days after receiving this information, Plaintiff must file an amended
complaint with the true name of the John or Jane Doe defendant. The amended complaint will
replace, not supplement, the original complaint. An amended complaint form for Plaintiff to
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complete once he receives the name of this defendant 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 a USM-285 form with the address for the
named John or Jane Doe defendants and deliver to the U.S. Marshals Service all documents
necessary to effect service.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an
information package. An amended complaint form is attached to this order.
The Clerk of Court is further instructed to (1) substitute Parole Officer L. Esteves for
Defendants “Parole Officer Estervez” and “Parole Officer Estevez”; (2) substitute Senior Parole
Officer A. Tucker for the unknown senior parole officer; (3) complete the USM-285 forms with
the addresses for Defendants Parole Officer L. Esteves and Senior Parole Officer A. Tucker, and
deliver to the U.S. Marshals Service all documents necessary to effect service; and (4) mail a
copy of this order and the complaint to the Attorney General for the State of New York at the
following address: Office of the Attorney General 28 Liberty Street New York, NY 10005.
SO ORDERED.
Dated:

October 16, 2020
New York, New York
ANDREW L. CARTER, JR.
United States District Judge

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DEFENDANTS AND SERVICE ADDRESSES
Parole Officer L. Esteves
New York State Division of Parole
Manhattan II Area Office
314 West 40th Street
New York, NY 10018
Senior Parole Officer A. Tucker
New York State Division of Parole
Manhattan II Area Office
314 West 40th Street
New York, NY 10018