Amaker et al v. Goord et al
DECISION AND ORDER re: service upon defendants. Signed by Hon. H. Kenneth Schroeder, Jr on 9/20/2012. (KER)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANTHONY AMAKER, et al.,
COMM. G.S. GOORD, et al.,
DECISION AND ORDER
This matter has been referred to the undersigned, pursuant to 28 U.S.C.
§ 636(b)(1)(A)-(C), for all pretrial matters and to hear and report upon dispositive
motions for consideration of the district judge. (Docket No. 23.)
The Court had previously directed the Clerk of the Court to cause the
United States Marshals Service to serve the Summons and Amended Complaint upon
the defendants, see 28 U.S.C. § 1915(d) and Fed.R.Civ.P. 4(c)(3) (Docket No. 32), and
summons were issued for the defendants named in the Amended Complaint. The
Court thereafter requested the assistance of the New York State Attorney General’s
Buffalo Regional Office, pursuant to Valentin v. Dinkins, 121 F.3d 72, 75 (2d Cir. 1997),
to ascertain addresses of some of the defendants that had not filed an
Acknowledgment of Receipt of Service by Mail pursuant to N.Y.C.P.L.R., § 312-a(b).
(Docket No. 33.) After the Attorney General Office’s response, a further order was
issued amending the caption and again directing service on certain defendants by the
Marshals Service. (Docket No. 49.)
To date, a number of defendants have not returned Acknowledgments of
Receipt of Service by Mail, see N.Y.C.P.LR., § 312-a, nor appeared in this action, and
thus remain “unserved”1--Supt. McGinnis, C.O. Huffer, Sgt. P. Gavigan, L. McNamara,
Paribella, C.J. Martinez, R. Christensen, and S. Christensen.2 The Court has also
learned that the New York State Department of Corrections and Community
Supervision cannot identify defendants Paribella and C.J. Martinez as persons who
were ever employed by DOCCS or its predecessor agency, New York State
Department of Correctional Services. Accordingly,
IT IS HEREBY ORDERED that the New York State Department of
Corrections and Community Service and the New York State Attorney General’s Office
shall ascertain the last known addresses of C.O. Huffer, Supt. McGinnis, Sgt. P.
Gavigan, L. McNamara, R. Christensen and/or S. Christensen and provide said
addresses in camera to the Court’s Pro Se Office on or before October 26, 2012.
Upon receipt of said addresses, the Court will direct that summonses be re-issued and
the Marshals Service again serve these defendants;
Pursuant to N.Y.C.P.L.R., § 312-a(b), service is not complete until the defendant returns the Acknowledgment
of Receipt of Service by Mail.
The Court does not know if “S.” and “R.” Christensen are the same or different individuals. Plaintiffs need to
respond to this Order and clarify that for the Court and defendants.
FURTHER, that the Court directs plaintiffs by that same date to advise the
Court if the individuals identified in the Amended Complaint as Paribela and C.J.
Martinez have been misidentified inasmuch as DOCCS has no records of individuals
with those names being employed by it. If plaintiffs cannot identify these two
defendants correctly they will be dismissed as defendants to this action.
Buffalo, New York
September 20, 2012
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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