Brown v. Department of Correctional Services of New York State et al

Filing 18

DECISION AND ORDER. Time extended for Plaintiff to serve summons and complaint upon defendants referred to in order. Signed by Hon. Leslie G. Foschio on 8/25/2010. (SDW)

Brown v. Department of Correctional Services of New York State et al

Doc. 18

-PS-O -

U N IT E D STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK

G E N E O BROW N , P e titio n e r , -vD E C IS IO N AND ORDER 0 9 -C V -0 9 4 9 S (F )

D E P A R T M E N T OF CORRECTIONAL SERVICES, et al.,, D e f e n d a n ts .

T h is matter has been referred to the undersigned, pursuant to 28 U.S.C. § 6 3 6 (b )(1 )(A )-(B ), for all pre-trial matters, including but not limited to (1) conduct of a s c h e d u lin g conference and entry of a scheduling order pursuant to Fed. R. Civ. P. 16, (2) h e a rin g and disposition of all non-dispositive motions or applications, (3) supervision of d is c o v e ry, and (4) supervision of all procedural matters involving the aforementioned or in v o lv in g the preparation of the case or any matter therein for consideration by the District J u d g e . (Docket No. 6.) O n March 25, 2010, the Court granted plaintiff, who is acting pro se, permission to p ro c e e d in forma pauperis and dismissed some of the claims pled in the complaint and d ire c te d the Clerk of the Court to cause the United States Marshals service to serve the s u m m o n s and complaint upon the defendants with respect to the remaining claims. (Docket N o . 3, Order.) On May 27, 2010, summonses were issued and, according to the Docket R e p o rt it appears that, to date, all the defendants have been served and have answered the c o m p la in t except Dr. Joseph Haluska, Correctional Officer Deburgomaster, Esgrow, S o u th p o rt Hearing Officer, New York State Department of Correctional Services ("DOCS") a n d New York State Department of Mental Health ("OMH"). The Court's Pro Se Office has

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contacted the New York State Attorney General's Office, the office that has appeared on b e h a lf of the defendants herein, to obtain their assistance regarding the status of service o n the defendants referred to above. As to Esgrow, it appears that he did not receive the s u m m o n s and complaint at Southport. As to Haluska, he is retired and there is no

in f o rm a tio n regarding whether he was forwarded the summons and complaint once it was re c e iv e d at Southport. As to defendants DOCS and OMH, the Docket Report does not w h e th e r summonses were issued for them or whether, if summonses were issued, they h a v e been served and returned by the Marshals Service as unexecuted. As to defendant D e b u rg o m a s te r, there is no information as to whether he was served at Southport.1 O n c e a plaintiff is granted permission to proceed in forma pauperis the burden of e f f e c tin g service on the defendant shifts from the incarcerated plaintiff to the Court. See R o m e a n d e tte v. W e e ta b ix Co., 807 F.2d 309, 311 (2d Cir. 1996) ("The interests of justice, in f o rm e d by a liberal interpretation of Rule 4, are best served by allowing [incarcerated litig a n ts ] to rely on the personal service, albeit untimely, ultimately effected by the Marshal's S e rv ic e ). Once an inmate-plaintiff has provided the Marshal with the information necessary to serve his complaint, "he is absolved of further responsibility for service." Rivera v. Pataki, N o . 04 Civ. 1286 (MBM), 2005 W L 407710, at *15 (S.D.N.Y., Feb. 7, 2005). Accordingly, this Court finds that there is "good cause" to extend the time in which p la in tif f may serve the summons and complaint upon the defendants referred to above, see M u rra y v. Pataki, 09-1657-pr, 2010 W L 2025613, at *2 (2d Cir. May 24, 2008) (Summary O rd e r) (once plaintiff identifies defendant, Marshal's failure to serve automatically

N .Y . C . P . L . R . § 312-a(b), which is the method of service the Marshal Service utilizes in this District, provides th a t service is not "complete" until the defendant returns the signed acknowledgment of receipt of service to the sender­in th is case the Marshals Service.

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constitutes good cause), and the Clerk of the Court is directed to re-issue the summonses a s to defendants Dr. Joseph Haluska, Deburgomaster, Esgrow, New York State Department o f Correctional Services and New York State Department of Mental Hygiene and cause the U n ite d States Marshal to re-serve the summons and complaint on said defendants. Defendants Esgrow and Deburgomaster can be served at the Southport Correctional F a c ility. The New York State Department of Correctional Services can be served at NYS D e p a rtm e n t of Correctional Services, Building 2, 1220 W a s h in g to n Avenue, Albany, New Y o rk 12226-2050; and the New York State Office of Mental Health can be served at 44 H o lla n d Avenue, Albany, New York 12229. A s to defendant Haluska, the Marshals Service shall serve W illia m Gonzales, DOCS C o u n s e l's Office, NYS Department of Correctional Services, Building 2, 1220 W a s h in g to n A v e n u e , Albany, New York 12226-2050, who shall then notify Haluska of service of the s u m m o n s and complaint and request that he acknowledge service. T h e Attorney General's Office is requested to assist the Court and Marshals Service in confirming that the defendants have been served, and to notify the Court in writing within 6 0 days of receipt of this Order of the status of service on these defendants. P u rs u a n t to 42 U.S.C. § 1997e(g)(2), defendants are directed to answer the c o m p la in t . S O ORDERED.

/s/ Leslie G. Foschio
__________________________________________ LESLIE G. FOSCHIO UNITED STATES MAGISTRATE JUDGE D a te d : A u g u s t 25, 2010 B u f f a lo , New York

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