Sutton v. Adams et al

Filing 5

ORDER OF SERVICE: The Clerk of Court is directed to mail an information package to Plaintiff. The Clerk of Court is further instructed to complete the USM-285 forms with the addresses for Defendants City of New York and Mayor Eric Adams and del iver to the U.S. Marshals Service all documents necessary to effect service. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied f or the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). SO ORDERED. (Signed by Judge J. Paul Oetken on 5/18/2023) (vfr) Transmission to Pro Se Assistants for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TROY SUTTON,
Plaintiff,
-againstERIC ADAMS; CITY OF NEW YORK,

23-CV-3880 (JPO)
ORDER OF SERVICE

Defendants.
J. PAUL OETKEN, United States District Judge:
Plaintiff, who is appearing pro se, alleges that he was fired, in violation of rights, for
failing to comply with a requirement that New York City employees be vaccinated against
Covid-19. By order dated May 9, 2023, the Court granted Plaintiff’s request to proceed in forma
pauperis (IFP), that is, without prepayment of fees.
DISCUSSION
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
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 City of New York and Mayor Eric
Adams 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.
CONCLUSION
The Clerk of Court is directed to mail an information package to Plaintiff.
The Clerk of Court is further instructed to complete the USM-285 forms with the
addresses for Defendants City of New York and Mayor Eric Adams and deliver to the U.S.
Marshals Service all documents necessary to effect service.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an

2

appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant
demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.
Dated:

May 18, 2023
New York, New York
J. PAUL OETKEN
United States District Judge

3

DEFENDANTS AND SERVICE ADDRESSES
City of New York
New York City Law Department
100 Church Street
New York, NY 10007
Mayor Eric Adams
New York City Law Department
100 Church Street
New York, NY 10007