Shomo v. State of New York Department of Corrections and Community Supervision and it's Executives

Filing 13

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 also directed to add Anthony Annucci, Acting Commissioner of DOCCS; Dr. John Morley, Chief Me dical Officer of DOCCS; and Dr. Gaetan Zamilus as defendants under Fed. R. Civ. P. 21. The Clerk of Court is further instructed to complete the USM-285 forms with the addresses for DOCCS, Acting Commissioner Anthony Annucci, Dr. Morley, and Dr. Zam ilus, issue summonses, and deliver all documents necessary to effect service to the U.S. Marshals Service. SO ORDERED. (Signed by Judge Philip M. Halpern on 4/27/2021) Anthony Annucci, Dr. John Morley and Dr. Gaetan Zamilus added. (ks) Transmission to Pro Se Assistants for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOSE J. SHOMO, and all those like and
similarly situated,
Plaintiff,
-against-

ORDER OF SERVICE
21-CV-0128 (PMH)

STATE OF NEW YORK DEPARTMENT OF
CORRECTIONAL AND COMMUNITY
SUPERVISION AND ITS EXECUTIVES,
Defendants.
PHILIP M. HALPERN, United States District Judge:
Plaintiff Jose Shomo, currently incarcerated in Fishkill Correctional Facility, brings this
action under 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101
et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, alleging that Defendants
violated his rights. By order dated March 31, 2021, the Court granted Plaintiff’s request to
proceed without prepayment of fees, that is, in forma pauperis (IFP). 1
DISCUSSION
A.

Rule 21 of the Federal Rules of Civil Procedure
Plaintiff names the State of New York Department of Corrections and Community

Supervision (DOCCS) and its executive as the defendants in the caption of the complaint, but he
fails to provide the actual names of the executives. However, in the complaint, Plaintiff names
Anthony Annucci, Acting Commissioner of DOCCS; Dr. John Morley, Chief Medical Officer of
DOCCS; and Dr. Gaetan Zamilus, his attending doctor at Fishkill, as the executives involved in

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).

the alleged violations. The Clerk of Court is therefore directed, under Rule 21 of the Federal Rules
of Civil Procedure, to amend the caption of this action to add Acting Commissioner Anthony
Annucci, Dr. Morley, and Dr. Zamilus as defendants in this action. This amendment is without
prejudice to any defenses that these defendants may wish to assert.
B.

Service on Defendants
Because Plaintiff has been granted permission to proceed 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 summonses and the complaint be served within 90 days of the
date the complaint is filed, Plaintiff is proceeding IFP and could not have served summonses and
the complaint until the Court reviewed the complaint and ordered that summonses be issued. The
Court therefore extends the time to serve until 90 days after the date summonses are 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 DOCCS, Commissioner Anthony
Annucci, Dr. Morley, and Dr. Zamilus 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
2

and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to
effect service upon the 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, together with an
information package.
The Clerk of Court is also directed to add Anthony Annucci, Acting Commissioner of
DOCCS; Dr. John Morley, Chief Medical Officer of DOCCS; and Dr. Gaetan Zamilus as
defendants under Fed. R. Civ. P. 21.
The Clerk of Court is further instructed to complete the USM-285 forms with the addresses
for DOCCS, Acting Commissioner Anthony Annucci, Dr. Morley, and Dr. Zamilus, issue
summonses, and deliver all documents necessary to effect service to the U.S. Marshals Service.
SO ORDERED.
Dated:

April 27, 2021
White Plains, New York
PHILIP M. HALPERN
United States District Judge

3

DEFENDANTS AND SERVICE ADDRESSES
New York State Department of Corrections and Community Supervision
The Harriman State Campus, Building 2
1220 Washington Avenue
Albany, New York 12226
Anthony Annucci
Acting Commissioner, New York State DOCCS
The Harriman State Campus, Building 2
1220 Washington Avenue
Albany, NY 12226-2050
Dr. John Morley
Chief Medical Officer, New York State DOCCS
The Harriman State Campus, Building 2
1220 Washington Avenue
Albany, New York 12226
Dr. Gaetan Zamilus
Fishkill Correctional Facility
18 Strack Drive
Beacon, New York 12508-0307