Reed v. The City of New York et al
ORDER OF SERVICE: The Clerk of Court is respectfully instructed to (1) complete the USM-285 forms with the addresses for Harold Mejia, Brittney Saxon, and Jeffrey Santana; (2) issue summonses; and (3) deliver to the U.S. Marshals Service all document s necessary to effect service of the summons and Second Amended Complaint on those defendants. SO ORDERED. USM-285 Form due by 12/21/2022. Request for Issuance of Summons due by 12/21/2022. (Signed by Magistrate Judge Barbara C. Moses on 11/21/2022) (ama) Transmission to Pro Se Assistants for processing.
Case 1:20-cv-08352-JPC-BCM Document 63 Filed 11/21/22 Page 1 of 5
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-againstCITY OF NEW YORK, et al.,
20-CV-8352 (JPC) (BCM)
ORDER OF SERVICE
BARBARA MOSES, United States Magistrate Judge.
Plaintiff, currently incarcerated in the Fishkill Correctional Institution in Beacon, New
York, brings this pro se action against various individuals affiliated with the New York City Police
Department, alleging violations of his constitutional rights as well as state law. Plaintiff filed his
original Complaint on October 5, 2020. (Dkt. 2.) On December 7, 2020, the Court granted
plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (Dkt. 5), and
on April 16, 2021, plaintiff filed his Amended Complaint. (Dkt. 12.)
On August 20, 2021, the Court issued an Order of Service (Dkt. 15) (1) directing service
of the summons and Amended Complaint upon the City of New York (City) and Police Officer
Dennis; (2) severing or dismissing all of plaintiff's claims except for his claims against the City of
New York, Police Officer Dennis, Police Officers John Doe #1-#6, and Detectives Jane and John
Doe #1-#2, arising out of plaintiff's arrests and detainments by the New York Police Department
(NYPD) on September 9, 2019, July 17, 2020, and August 3, 2020; and (3) directing the
Corporation Counsel of the City of New York (Corporation Counsel) to ascertain the identity and
badge number of the NYPD members involved in those incidents and sued as "Doe" defendants.
On February 1, 2022, the City and Police Officer Dennis answered the Amended
Complaint. (Dkt. 36.) That same day, the Corporation Counsel identified three of the "Doe"
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defendants as Police Office Meija, Detective Saxon, and Detective Santana. (Dkt. 37.) However,
the Corporation Counsel did not have enough information to identify the remaining "Doe"
defendants, including the "warrant" officers who allegedly picked plaintiff up on September 10,
2019 and the "plain clothes" officers who allegedly arrested him on August 3, 2020. (Id.)
On February 3, 2022, the Court directed plaintiff to file a letter, no later than March 4,
2022, providing a more detailed description of the 9/10/19 Warrant Officer Defendants and 8/3/20
Plain Clothes Defendants (as defined in the Court's Order), as well as details concerning the time
of day and precise location where plaintiff encountered them. (Dkt. 38.) Plaintiff did not do so,
and his deadline expired. On March 11, 2022, the Court directed plaintiff to file his Second
Amended Complaint – based upon the information available to him to date, including Corporation
Counsel's letter – no later than April 11, 2022 (Dkt. 42), and on April 18, 2022, the Court extended
plaintiff's deadline to file his Second Amended Complaint to May 18, 2022. (Dkt. 43.) Around this
time, plaintiff was re-arrested, reincarcerated, and moved to several different facilities, causing the
initial case management conference to be adjourned several times. (See Dkts. 45-53.)
The Court finally held an initial case management conference on August 30, 2022, by
telephone, and gave plaintiff until September 30, 2022, to file his Second Amended Complaint.
(Dkt. 54.) At plaintiff's request (Dkt. 58), the Court then extended that deadline another 30 days.
On October 25, 2022, plaintiff filed his Second Amended Complaint (SAC), in which he
names the City; Police Officers Dennis and Mejia; Detectives Saxon and Santana; and John Does
#1-#6. (Dkt. 60.) Additionally, in the body of his Amended Complaint, plaintiff provides physical
descriptions of 9/10/19 Warrant Officer Defendants and the 8/3/20 Plain Clothes Defendants.
Additionally, plaintiff requests that the Court "implead" two new defendants: Barry F. Weiss, his
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court-appointed defense lawyer in one of the criminal cases against him, who "made my life hell
in the Years 20 to 22, and continuing," SAC at ECF p. 17, and NYPD Officer Ortiz, who visited
plaintiff's fiancée on July 27, 2020 and "forged her signature" on a Domestic Incident Report
(DIR). Id. at ECF pp. 19-21.
For the reasons that follow, the Court will direct service on Harold Mejia, Brittney Saxon,
and Jeffrey Santana.
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 summons and SAC
until the Court reviewed the complaint and ordered that a summons be issued. The Court therefore
extends the time to serve the SAC until 90 days after the date the summons is issued. If the SAC
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 Mejia, Saxon, and Santana through the
U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals Service Process
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Receipt and Return form ("USM-285 form") for each of these defendants. The Clerk of Court is
further instructed to (1) issue summonses and (2) deliver to the Marshals Service a copy of this
order and all other paperwork necessary for the Marshals Service to effect service on these
To the extent the SAC can be construed as a motion to further expand this action to
including attorney Weiss and Officer Ortiz as defendants, the motion is denied. Although leave
amend a pleading pursuant to Fed. R. Civ. P. 15(a)(2) should be "freely given" when "justice so
requires," leave may be denied where, among other things, the record reveals "undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, [or] undue prejudice to the opposing party by virtue of allowance
of the amendment[.]" Foman v. Davis, 371 U.S. 178, 182 (1962). Plaintiff's claims against attorney
Weiss, if any, arise from events that took place after the arrests of which he complains in this action
and appear to sound in legal malpractice. Those claims must be brought, if at all, in a separate
proceeding. See Amusement Indus., Inc. v. Stern, 2014 WL 4460393, at *13 (S.D.N.Y. Sept. 11,
2014) ("[C]ourts regularly deny motions to amend where the moving party seeks to add claims
involving collateral matters, based on different factual allegations and distinct legal theories, from
the claims already at issue in a case.").
As for Officer Ortiz, the Court notes that plaintiff has known this officer's identity for at
least 18 months, since he filed his Amended Complaint on April 21, 2021. See Amend. Compl. at
ECF p. 44 (copy of Domestic Incident Report signed by P.O. Ortiz on July 27, 2020). However,
plaintiff made no effort to include Ortiz as a defendant until October 25, 2022, and does not explain
his delay in doing so. Under these circumstances, justice does not require that plaintiff be permitted
to file yet another pleading, to include alleged misconduct by an additional defendant, on yet
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another date. See Stern, supra; U.S. ex rel. Kester v. Novartis Pharm. Corp., 2015 WL 1650767, at
*5 (S.D.N.Y. Apr. 10, 2015) ("Although mere delay is usually insufficient to deny leave to amend
under Rule 15(a), a lengthy delay without a reasonable explanation justifies denying leave to
Plaintiff is reminded that he must notify the Court in writing if his address changes, and
the Court may dismiss the action if plaintiff fails to do so.
The Clerk of Court is respectfully instructed to (1) complete the USM-285 forms with the
addresses for Harold Mejia, Brittney Saxon, and Jeffrey Santana; (2) issue summonses; and (3)
deliver to the U.S. Marshals Service all documents necessary to effect service of the summons and
Second Amended Complaint on those defendants.
Dated: New York, New York
November 21, 2022
United States Magistrate Judge
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