Nelson v. Gleason et al

Filing 12

-CLERK TO FOLLOW UP-ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER finding as moot 5 Motion for Permanent Injunction; finding as moot 5 Motion for TRO; finding as moot 5 Motion for Order to Show Cause; denying 6 Motion to Appoint Counsel; granting 7 Motion for Service by US Marshal; granting 8 Motion to CompelPlaintiff's time to serve defendants is extended. Pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam), New York State Attorney General's Office is to provide the addresses of defendants and provide this information by 5/27/2016.Plaintiff's motion for appointment of counsel (Docket No. 6) is denied without prejudice at this time.Copy of Order mailed to plaintiff at Clinton Correctional Facility by Chambers.Court Clerk is to send a copy of this Order to the Assistant Attorney General in Charge, Buffalo Regional Office. Court Clerk is asked to update plaintiff's address at the Clinton Correctional Facility.So Ordered. Signed by Hon. Hugh B. Scott on 4/12/2016. (DRH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

LIONELL NELSON,
Plaintiff,
Hon. Hugh B. Scott
14CV870A
v.
Order

LARRY GLEASON, CARLTON
BRINK, GARY BELZ,
Defendants.

Before the Court are various motions by plaintiff, proceeding pro se (Docket Nos. 5, 6, 7,
8). Plaintiff has filed these motions in an attempt to serve the defendants. Plaintiff alleges
excessive force and assault by defendant corrections officers on October 16, 2011, when plaintiff
was housed at Southport Correctional Facility, in violation of the Eighth Amendment (Docket
No. 1, Compl.).
Temporary Restraining Order (Docket No. 5)
First, plaintiff moves for a temporary restraining Order (Docket No. 5) to enjoin
defendants, “their successors in office, agents and employees and all other persons acting in
concert and participation with them” from harassing plaintiff, stealing his food, depriving him of
exercise, interfering with him receiving medical services, stealing his books, and aggressively
pat frisking him (id. at 1-2). Court will not address this at this time because no defendant has
been served. Plaintiff was in Southport Correctional Facility when he filed that motion (see id. at

page 4 of 5), but (according to New York State Department of Corrections and Community
Supervision records) he is now housed at Clinton Correctional Facility. Given this relocation
(and no supplemental allegation of continued harassment at Clinton Correctional Facility),
injunctive relief as sought here is moot.
Extension of Time to Serve (Docket No. 7) and Location of Defendants (Docket No. 8)
Next, plaintiff moves for an extension of time for service by the United States Marshal
Service (Docket No. 7). Plaintiff moved for (Docket Nos. 2, 3) and was granted (Docket No. 4)
leave to proceed as a poor person, including ordering the United States Marshal to serve process
for plaintiff. Attempts were made to serve defendants, corrections officers at Southport
Correctional Facility, but the summonses were returned unexecuted (Docket No. 10). That
extension of time for service (Docket No. 7) is granted. “Once a plaintiff is granted permission
to proceed in forma pauperis, the responsibility for effecting service of the summons and
complaint shifts from the plaintiff to the court,” Justice v. King, No. 08cv6417, 2009 WL
1606523, at *1 (W.D.N.Y. June 4, 2009) (Siragusa, J.); 28 U.S.C. § 1915(d). As the Second
Circuit found in Walker v. Schult, 717 F.3d 119, 123 (2d Cir. 2013), when considering a pro se
inmate attempting service through the USMS,
“Generally, a pro se litigant proceeding in forma pauperis is entitled to rely on the
U.S. Marshals Service to effect service. See 28 U.S.C. § 1915(d). . . . The failure
of the U.S. Marshals Service to properly effect service of process constitutes
‘good cause’ for failure to effect timely service, within the meaning of Federal
Rule of Civil Procedure 4(m). See Romandette v. Weetabix Co., 807 F.2d 309,
311 (2d Cir. 1986) (reversing dismissal where the U.S. Marshals Service failed to
effect timely personal service through no fault of the plaintiff),”
Walker, supra, 717 F.3d at 123 (emphasis added).

2

This Court finds good cause shown to extend the time to serve summonses upon
defendants, recognizing the fact that plaintiff had no control over the manner of service once his
in forma pauperis motion was granted. With the grant of in forma pauperis status, the United
States Marshal Service takes over service for plaintiff. The United States Marshal Service’s
failure to perform this service is good cause for an extension of time for service, see Murray v.
Pataki, 378 Fed. App’x 50, 52 (2d Cir. 2010) (summary Order). See also Cortright v. Belloma,
No. 13CV865, 2016 U.S. Dist. LEXIS 19310, at *12-16 (W.D.N.Y. Feb. 16, 2016) (Scott, Mag.
J.).
Plaintiff also moves to compel disclosure of these defendants’ addresses (Docket No. 8).
Pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam), this Court requests that
the New York State Attorney General’s Office attempt to ascertain the addresses of defendants
Larry Gleason, Carlton Brink and Gary Belz where these defendants currently can be served.
The Attorney General’s Office need not undertake to defend or indemnify these individuals at
this juncture. This Order merely provides a means by which plaintiff may properly serve these
defendants as instructed by the Second Circuit in Valentin, supra. The New York State Attorney
General’s Office is hereby requested to produce this information regarding the addresses of these
defendants by May 27, 2016.
Appointment of Counsel (Docket No. 6)
Plaintiff also moved for appointment of pro bono counsel (Docket No. 6), despite his
efforts to retain counsel (see id., Exs.). That motion is denied without prejudice at this time.
Under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent litigants, Sears,
Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988).
3

Assignment of counsel in this matter is clearly within the judge’s discretion, see In re MartinTrigona, 737 F.2d 1254 (2d Cir. 1986). The factors to be considered in deciding whether or not
to assign counsel are set forth by the Second Circuit in Hodge v. Police Officers, 802 F.2d 58 (2d
Cir. 1986). Counsel may be appointed in cases filed by indigent plaintiffs where it appears that
such counsel will provide substantial assistance in developing petitioner’s arguments, the
appointment will otherwise serve the interests of justice, and where the litigant has made “a
threshold showing of some likelihood of merit,” Cooper v. A. Sargenti Co., 877 F.2d 170, 174
(2d Cir. 1989).
The Court has reviewed the facts presented herein in light of the factors required by law,
including the analysis above on defendants’ motion for summary judgment. Based on this
review, plaintiff’s motion for appointment of counsel is DENIED WITHOUT PREJUDICE
AT THIS TIME. At this early stage in the litigation, plaintiff has shown that he can navigate
the procedures for prosecuting this action. It remains the plaintiff's responsibility to retain
his/her own attorney or to press forward with this lawsuit pro se. 28 U.S.C. § 1654.
Court Clerk is instructed to update plaintiff’s address to the Clinton Correctional Facility,
1156 Route 374, P.O. Box 2000, Dannemora, New York 12929-2000. Pursuant to this Court’s
Local Civil Rule 5.2(d), this Court needs plaintiff’s current address and plaintiff as a pro se
litigant must inform this Court immediately, in writing, of any change of his address. Court
Clerk is also to directed to forward a copy of this Order to Michael Russo, Assistant Attorney
General in Charge, Buffalo Regional Office, [e-mail].

4

A copy of this Order will be sent to the Assistant Attorney General in Charge, Buffalo
Office (see also Docket No. 4). Chambers also will send a copy of this Order to plaintiff at
Clinton Correctional Facility.
So Ordered.

/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge

Dated: Buffalo, New York
April 12, 2016

5