Ward v. City of Middletown Police Department et al

Filing 103

SECOND SUPPLEMENTAL ORDER OF SERVICE: Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). Because Decker and Dubois were inadvertently omitt ed from the Courts supplemental order of service, the Court directs the County attorney to provide the Court and the Plaintiff with the service address for Decker and Dubois on or before November 2, 2021. Upon receipt of this informati on, the Court will issue an order directing the Clerk of Court to complete the USM-285 forms with the addresses for Decker and Dubois and deliver the documents necessary to effect service to the U.S. Marshals Service. The Clerk of Court is directed mail a copy of this order to pro se Plaintiff at the address on ECF and to show service on the docket. So Ordered (Signed by Judge Nelson Stephen Roman on 10/19/2021) (js) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
:
J'min Atiba Ward,
:
:
Plaintiff,
:
-against:
:
:

10/19/2021

17-cv-5248 (NSR)
SECOND
SUPPLEMENTAL ORDER
OF SERVICE

:
:
Defendants.
:
---------------------------------------------------------------X
NELSON S. ROMÁN, United States District Judge:
Plaintiff, currently residing at Eastern N.Y. Correctional Facility, brings this pro se action
City of Middletown, et al.

under 42 U.S.C. § 1983 related to alleged constitutional violations in conjunction with the
execution of a no-knock warrant. The original complaint named the City of Middletown Police
Department, John Doe, John Doe, John Doe, John Doe, Eric J. Harget, Orange County Sheriff's
Office. (ECF No.1.) By order dated August 8, 2017, the Court granted Plaintiff’s request to proceed
without prepayment of fees, that is, in forma pauperis. (ECF No. 7.) On August 31, 2021, the
Court sua sponte dismissed Plaintiff’s claims (1) against the City of Middletown Police
Department and the Orange County Sheriff's Office Special Operations Group, (2) claims against
Defendant Correctional Officer John Doe, and (3) all claims brought on behalf of Plaintiff's wife
and minor daughters. (ECF No. 10.) The Court also directed the Clerk of Court is directed to add
the City of Middletown and the County of Orange as Defendants, and to mail a copy of the order
to the City and County attorneys, and directed Plaintiff to file an amended complaint. (Id.) Plaintiff
filed his first amended complaint on September 12, 2017, naming only the City of Middletown
and the County of Orange. (ECF No. 12.) On October 26, 2017, counsel for the County confirmed
the names and service addresses for the County John Does. (ECF No. 22.) On November 8, 2017,

counsel for the City also responded identifying the names of the current and former police chief.
(ECF No. 29.)
On November 2, 2017, Plaintiff attempted to file second amended complaint against City
of Middletown, County of Orange, Kenneth Decker, Carl Dubois, Steven Brockett and John Doe
without leave to do so. (ECF No. 26.) In September 2018, the Court extended the City and
Counties’ time to respond to the second amended complaint until 60 days after all newly identified
City and County defendants have been named, served and requested representation. (ECF Nos. 37
and 38.) In November 2020 the Court issued an order clarifying that Plaintiff was required to
amend the Second Amended Complaint to name the individuals identified by the City (ECF No.
29) and County (ECF No. 22) in response to the Court’s August 31, 2017 Order of Service. (ECF
No. 49.) Plaintiff filed a second amended complaint on November 30, 2020 against Ramon
Bethancourt, Paul Brahm, Steven Brockett, City of Middletown, Jason Davis, Chris DeSena,
Kenneth Decker, Carl Dubois, Daniel Greer, Eric J. Hargett, Vincent Iannuzzi, Jason Kahmar,
Michael Kania, Daniel Lopez, Brian Shanley, John Trazino, Anthony Weed. (ECF No. 50.) In
January 2021, the Court issued a supplemental order of service, but inadvertently omitted Kenneth
Decker and Carl Dubois, who were named in Plaintiff’s amended pleading, and appear to be
affiliated with the County. (ECF No. 51.) The appearing County Defendants and the appearing
City Defendants have moved to dismiss the second amended complaint. (ECF Nos. 80 and 86.)
The memorandum in support of County’s motion, which was mailed to Plaintiff on May 10,
2021, stated that Decker and Dubois had never been served. (ECF No. 88 at 1 n.1; see ECF
No. 90.) Plaintiff opposed the County’s motion but did not address the service issues. (see ECF
No. 91.)
On October 18, 2021, the Court received a letter from Plaintiff, dated October 12, 2021, in
which Plaintiff appears to seek an extension to serve Decker and Dubois. (ECF Nos. 99 and 100.)

The County Defendants have opposed Plaintiff’s request because (1) the three-year statute of
limitations applicable to Plaintiff’s claims against Decker and Dubois expired in April 2020, and
(2) that County Defendants notified Plaintiff that Decker and Dubois were never served in May
2021 and Plaintiff did not address this issue in his opposition to the motion to dismiss or in any of
his multiple additional submissions to the Court following the submission of the motion in June
and waited an additional four months to seek permission to serve them. (ECF No. 101.)
Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court
in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). Because Decker and Dubois were
inadvertently omitted from the Court’s supplemental order of service, the Court directs the
County attorney to provide the Court and the Plaintiff with the service address for Decker
and Dubois on or before November 2, 2021. Upon receipt of this information, the Court will
issue an order directing the Clerk of Court to complete the USM-285 forms with the addresses for
Decker and Dubois and deliver the documents necessary to effect service to the U.S. Marshals
Service.
The Clerk of Court is directed mail a copy of this order to pro se Plaintiff at the address on
ECF and to show service on the docket.
Dated: October 19, 2021
White Plains, New York
NELSON S. ROMÁN
United States District Judge