Smolen, Jr. v. Wesley et al

Filing 127

ORDER OF SERVICE: The Clerk of Court is directed to mail a copy of this order to Plaintiff. The Clerk of Court is further instructed to deliver to the U.S. Marshals Service all documents necessary to effect service on Defendants Hobson and Emp ire State Ambulance. The Clerk of Court is also instructed to mail a copy of the amended complaint to Scharfenburg and Dunn, with an address to be provided. SO ORDERED. (Signed by Judge Philip M. Halpern on 6/17/2020) (ks) Transmission to Pro Se Assistants for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SAMUEL J. SMOLEN, JR.,
Plaintiff,
ORDER OF SERVICE

-againstC.O. M. WESLEY, et al.,

16-CV-02417 (PMH)
Defendants.

PHILIP M. HALPERN, United States District Judge:
Plaintiff, currently incarcerated at Sullivan Correctional Facility, brings this pro se action
under 42 U.S.C. § 1983 and state law, alleging that Defendants violated his rights while he was
incarcerated at Green Haven Correctional Facility. By order dated April 4, 2016, the Court granted
Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis. (Doc. 4). On
June 2, 2020, I ordered that counsel for the represented Defendants provide the addresses for
Defendants Hobson, Scharfenburg, Dunn, and Empire State Ambulance. Defendants Scharfenburg
and Dunn were served with Plaintiff’s Complaint, (see Docs. 66 and 67) but were never served
with Plaintiff’s Amended Complaint. Defendants Scharfenburg and Dunn have not appeared in
this action. Defendants Hobson and Empire State Ambulance were never served with Plaintiff’s
Complaint or Amended Complaint. By letter dated June 16, 2020 counsel for the represented
Defendants provided addresses for the aforementioned unserved Defendants. (Docs. 124 and 125).
Because Plaintiff has been granted permission to proceed in forma pauperis (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, as to Defendants Scharfenburg and Dunn, service of the Amended Complaint
on these Defendants was not previously ordered, (see Doc. 77), and as to Defendants Hobson and
Empire State Ambulance, Plaintiff was not previously provided an accurate address for these
Defendants. The Court therefore extends the time to serve these four Defendants with Plaintiff’s
Amended Complaint 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 Hobson and Empire State Ambulance
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 summonses 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 his address changes, and the Court may dismiss
the action if Plaintiff fails to do so.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff.
The Clerk of Court is further instructed to deliver to the U.S. Marshals Service all
documents necessary to effect service on Defendants Hobson and Empire State Ambulance.
2

The Clerk of Court is also instructed to mail a copy of the amended complaint to
Scharfenburg and Dunn, with an address to be provided.1
SO ORDERED:
Dated:

New York, New York
June 17, 2020
PHILIP M. HALPERN
United States District Judge

1

The Court will provide Scharfenburg’s and Dunn’s addresses to the Clerk’s Office.

3

DEFENDANTS AND SERVICE ADDRESSES
Gregory Scharfenburg
Address to be provided to the Clerk’s Office
Heather Dunn
Address to be provided to the Clerk’s Office
Donald Hobson
Marcy Correctional Facility
9000 Old River Rd.
Marcy, NY 13403
Empire State Ambulance
10 South White St.
Poughkeepsie, NY 12601