Reid v. The City of New York et al

Filing 39

ORDER OF SERVICE: Accordingly, the Court believes it is appropriate to direct service of summons and the Amended Complaint on the DANY Defendants. Following the effectuation of service, the Court will await either the DANY Defendants' Ans wer or pre-motion letter informing the Court of their intent to adhere to the pre-trial motion schedule that the Court will establish in a subsequent Order. The Court hereby ORDERS the extension of time to serve Defendants Cyrus R. Vance, Jr., and Lisa Franchini until 90 days after the date that a second amended summons is issued for each Defendant. The Clerk of Court is directed to issue a second amended summons for Cyrus R. Vance, Jr., and Lisa Franchini. The Clerk of Court is further dir ected to complete the USM-285 form with the below addresses and deliver to the U.S. Marshals Service all documents necessary to effect service. The Clerk of Court is further directed to mail a copy of this Order to Plaintiff's address of record. SO ORDERED. (Signed by Judge Katherine Polk Failla on 9/7/2021) (rj) Transmission to Pro Se Assistants for processing.

Case 1:20-cv-09243-KPF Document 39 Filed 09/07/21 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CEDRIC REID,
Plaintiff,
-v.THE CITY OF NEW YORK, MARTHA W.
KING, CYRUS R. VANCE, JR., LISA
FRANCHINI, SECURUS
TECHNOLOGIES, and LAURA S.
MELLO.

20 Civ. 9243 (KPF)
ORDER OF SERVICE

Defendants.
KATHERINE POLK FAILLA, District Judge:
Plaintiff Cedric Reid, currently incarcerated at Sing Sing Correctional
Facility, brings this pro se action under 42 U.S.C. § 1983. On November 4,
2020, Plaintiff filed a Complaint against, among others, Defendants Cyrus R.
Vance, Jr., and Lisa Franchini, both members of the New York District
Attorney’s Office (the “DANY Defendants”). (Dkt. #1). By order dated
January 12, 2021, the Court granted Plaintiff’s request to proceed in forma
pauperis. On July 13, 2021, the Court dismissed Plaintiff’s claims against the
DANY Defendants upon finding that both Defendants were immune from suit
for alleged acts committed within the scope of their official duties as
prosecutors. (Dkt. #9). In his Amended Complaint, docketed on September 1,
2021 (Dkt. #37), Plaintiff brings new claims against the DANY Defendants. The
Court has carefully reviewed Plaintiff’s articulation of his claims, including in
his Amended Complaint and at the pre-motion conference of September 1,

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2021 (see Minute Entry for September 1, 2021), and finds it appropriate to
direct service of summons on the DANY Defendants.
DISCUSSION
The Prison Litigation Reform Act requires federal courts to screen claims
brought by prisoners against governmental entities and those entities’ officers
or employees. See 28 U.S.C. § 1915A(a). The Court must dismiss any claim
that is frivolous, malicious, or fails to state a claim upon which relief may be
granted or that seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915A(b).
The Second Circuit has “frequently reiterated that sua sponte dismissal
of pro se prisoner petitions which contain non-frivolous claims without
requiring service upon respondents or granting leave to amend is disfavored”
under the Prison Litigation Reform Act. McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004) (internal quotation marks and alterations omitted). Preservice dismissal is inappropriate “whenever a liberal reading of the complaint
gives any indication that a valid claim might be stated.” Larkin v. Savage, 318
F.3d 138, 139 (2d Cir. 2003) (per curiam).
Plaintiff’s Amended Complaint pleads claims against the DANY
Defendants that clear the Prison Litigation Reform Act’s screening threshold.
Plaintiff’s Amended Complaint adequately alleges that the DANY Defendants
personally engaged in actions that violated his constitutional rights. See
Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (requiring a plaintiff to
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Case 1:20-cv-09243-KPF Document 39 Filed 09/07/21 Page 3 of 5

plead that an official’s actions violated the Constitution). Further, Plaintiff’s
Amended Complaint sufficiently alleges that the DANY Defendants’ actions
were investigatory and administrative in nature and thus not shielded by
absolute immunity. See Simon v. City of New York, 727 F.3d 167, 172 (2d Cir.
2013) (stating that prosecutors engaged in administrative or investigatory
functions receive qualified, rather than absolute, immunity). Plaintiff’s claims
against the DANY Defendants are sufficient at this stage of the proceedings to
avoid the “draconian” measure of pre-service dismissal. Benitez v. Wolff, 907
F.2d 1293, 1295 (2d Cir. 1990).
Accordingly, the Court believes it is appropriate to direct service of
summons and the Amended Complaint on the DANY Defendants. Following
the effectuation of service, the Court will await either the DANY Defendants’
Answer or pre-motion letter informing the Court of their intent to adhere to the
pre-trial motion schedule that the Court will establish in a subsequent Order.
CONCLUSION
The Court hereby ORDERS the extension of time to serve Defendants
Cyrus R. Vance, Jr., and Lisa Franchini until 90 days after the date that a
second amended summons is issued for each Defendant.
The Clerk of Court is directed to issue a second amended summons for
Cyrus R. Vance, Jr., and Lisa Franchini. The Clerk of Court is further directed
to complete the USM-285 form with the below addresses and deliver to the U.S.
Marshals Service all documents necessary to effect service.
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The Clerk of Court is further directed to mail a copy of this Order to
Plaintiff’s address of record.
SO ORDERED.
Dated: September 7, 2021
New York, New York
KATHERINE POLK FAILLA
United States District Judge

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DEFENDANTS’ AND SERVICE ADDRESSES
1. Cyrus R. Vance, Jr.
1 Hogan Place
New York, New York 10013
2. Lisa Franchini
1 Hogan Place
New York, New York 10013

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