Peralta v. Khouri

Filing 7

ORDER OF SERVICE: The Clerk of Court is instructed to issue a summons for Dr. Khouri, complete the USM-285 form with the address for Defendant, and deliver all documents necessary to effect service to the U.S. Marshals Service. The Clerk of Court is further instructed to mail an information package to Plaintiff. SO ORDERED. (Signed by Judge Philip M. Halpern on 5/8/2024) (jca) Transmission to Pro Se Assistants for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JIMY J. PERALTA,
Plaintiff,
-against-

24-CV-2760 (PMH)
ORDER OF SERVICE

DOCTOR KHOURI,
Defendant.
PHILIP M. HALPERN, United States District Judge:

Plaintiff, who currently is incarcerated at Franklin Correctional Facility, brings this action,
pro se, under 42 U.S.C. § 1983, alleging that Defendant provided him with inadequate medical
care when he was held in the Dutchess County Jail. By order dated May 1, 2024, the Court granted
Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. 1
DISCUSSION
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. 2 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).

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).
2

Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that a
summons be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP
and could not have effected service until the Court reviewed the complaint and ordered that any
summonses be issued. The Court therefore extends the time to serve until 90 days after the date
any summonses issue.

To allow Plaintiff to effect service on Defendant Dr. Khouri 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 Defendant. 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 Defendant.
If the complaint is not served within 90 days after the date the summons is issued, 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).
Failure to request an extension of time for service may result in the dismissal of this action pursuant
to Federal Rule of Civil Procedure 4(m).
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 instructed to issue a summons for Dr. Khouri, complete the USM285 form with the address for Defendant, and deliver all documents necessary to effect service to
the U.S. Marshals Service.
The Clerk of Court is further instructed to mail an information package to Plaintiff.
SO ORDERED.
Dated:

White Plains, New York
May 8, 2024
PHILIP M. HALPERN
United States District Judge

2

DEFENDANT AND SERVICE ADDRESS FOR EACH DEFENDANT
Dr. Khouri
Dutchess County Justice and Transition Center
150 North Hamilton Street
Poughkeepsie, NY 12601