Kotler v. Boley et al

Filing 53

ORDER OF SERVICE: The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package. The Clerk of Court is further instructed to issue a summons, complete the USM-285 forms with the address for Defendan t K. Chauvin, and deliver all documents necessary to effect service to the U.S. Marshals Service. The U.S. Marshals Service is respectfully directed to attempt in-person service. SO ORDERED. (Signed by Judge Kenneth M. Karas on 2/9/2021) (jca) Transmission to Pro Se Assistants for processing.

Case 7:17-cv-00239-KMK Document 53 Filed 02/09/21 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KERRY KOTLER,
Plaintiff,
-against17-CV-239 (KMK)
C. BOLEY, CORRECTION OFFICER; J.
CARRERAS, SERGEANT; K. CHAUVIN,
SENIOR COUNSELOR; AND S. REAMS,
INMATE GRIEVANCE PROGRAM
SUPERVISOR,

ORDER OF SERVICE

Defendants.
KENNETH M. KARAS, United States District Judge:
Plaintiff, currently incarcerated in the New York Central Psychiatric Center, brings this
pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights.
By order dated April 28, 2017, the Court granted Plaintiff’s request to proceed without
prepayment of fees, that is, in forma pauperis (IFP).1 On May 4, 2017, the Court issued an Order
of Service directing the U.S. Marshals Service (the “Marshals”) to complete service on the thennamed Defendants, including Defendant K. Chauvin (“Chauvin”). (Dkt. No. 7.) Service as to
the other Defendants was executed on July 10, 2017 and July 17, 2017, (Dkt. Nos. 11, 12, 13),
but Chauvin remained unserved, (Dkt. No. 18.) On September 28, 2018, the Court granted the
other named Defendants’ Motion To Dismiss and instructed the Attorney General for the State of
New York to provide Chauvin’s address. (Dkt. No. 29.) In a letter dated October 2, 2018, the
Attorney General responded with Chauvin’s last known address. (Dkt. No. 30.) The following
day, the Court issued a second Order of Service directing the Marshals to serve Chauvin at her

1

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

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last known address. (Dkt. No. 31.) On January 28, 2019, the Marshals indicated that they were
unable to complete service, as service by mail and three attempts to serve Chauvin at her last
known address were unsuccessful. (Dkt. No. 41.) On March 19, 2020, Plaintiff moved for an
extension of time to serve Chauvin. (Dkt. No. 47.) The Court granted this request, providing
Plaintiff until February 9, 2021 to serve Chauvin. (Dkt. No. 52.) The Court also requested that
the Marshals attempt to serve Chauvin again, (id.), but did not issue an Order of Service.
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 the Court provided
Plaintiff until February 9, 2021 to serve Chauvin, (see Dkt. No. 52), Plaintiff likely is not aware
that service was not yet attempted again at Chauvin’s last known address. The Court therefore
extends the time to serve until April 23, 2021. 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 Chauvin 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 this defendant. The Clerk of Court is further instructed to issue a

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summons and deliver to the Marshals Service all the paperwork necessary for the Marshals
Service to effect service upon this defendant. Because service by mail at this address was
already ineffective, (see Dkt. No 41), the Marshals are respectfully directed to attempt in-person
service of Chauvin.
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 a copy of this order to Plaintiff, together with an
information package.
The Clerk of Court is further instructed to issue a summons, complete the USM-285
forms with the address for Defendant K. Chauvin, and deliver all documents necessary to effect
service to the U.S. Marshals Service. The U.S. Marshals Service is respectfully directed to
attempt in-person service.
SO ORDERED.
Dated:

February 9, 2021
White Plains, New York
KENNETH M. KARAS
United States District Judge

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DEFENDANT AND SERVICE ADDRESS
K. Chauvin
354 Sunset Hill Road
East Fishkill, New York 12524