Augustin v. Westchester Department of Corrections

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JERRY AUGUSTIN, Plaintiff, 19-CV-8558 (CS) -against- ORDER OF SERVICE WESTCHESTER COUNTY, ef ai., Defendants.

CATHY SEIBEL, United States District Judge: Plaintiff, currently incarcerated at Metropolitan Detention Center, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants used excessive force and denied him medical attention. By order dated October 15, 2019, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis.

DISCUSSION A. Service on Westchester County, Correct Care Solutions, Santora, Craven, and Parks 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 the summons and complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served the summons and complaint until the Court reviewed the complaint and ordered that a summons be Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed in forma pauperis. See 28 U.S.C. § 1915(b)(1). issued. The Court therefore extends the time to serve until 90 days after the date the summons is 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 Boguslawa Uszynski, Maria Pabon, David Walker, William Garvin, Daquan Scott, Jeramey Smith, Arshad Nelson, Joseph Pasciotty, Naima Johnson, and Jenile Parchment 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-265 form”) for each of these defendants. 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 these defendants. The service address for each of these Defendants is: Westchester County Jail, 10 Woods Road, Valhalla, NY 10595, Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so.

B. Leave to amend As per the Court’s ruling on the record on March 5, 2010, the Court grants Plaintiff until June 1, 2020, to file his Second Amended Complaint.

CONCLUSION The Clerk of Court is directed to mail a copy of this order to Plaintiff. An “Amended Complaint” form is attached to this order. Plaintiff is reminded that his next complaint should be fashioned as “Second Amended Complaint.”

The Clerk of Court is further instructed to complete the USM-285 forms with the addresses for Boguslawa Uszynski, Maria Pabon, David Walker, William Garvin, Daquan Scott, Jeramey Smith, Arshad Nelson, Joseph Pasciotty, Naima Johnson, and Jenile Parchment and deliver all documents necessary to effect service to the U.S. Marshals Service.

The Clerk of Court is directed to mail a copy of this order and the complaint to the Westchester County Attorney at: 148 Martine Avenue, White Plains, NY 10601.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).

SO ORDERED. .

Dated: March 5, 2020 White Plains, New York Leful bby fowe United States District Judge DEFENDANTS AND SERVICE ADDRESSES 1. Boguslawa Uszynski Westchester County Jail Woods Road Valhalla, NY 10595 2. Maria Pabon Westchester County Jail Woods Road Valhalla, NY 10595 3, David Walker Westchester County Jail Woods Road Valhalla, NY 10595 4, William Garvin Westchester County Jail Woods Road Valhalla, NY 10595 5. Daquan Scott Westchester County Jail Woods Road Valhalla, NY 10595 6. Jeramey Smith Westchester County Jail Woods Road ~ Valhalla, NY 10595 7 Arshad Nelson Westchester County Jail Woods Road Valhalla, NY 10595 8. Joseph Pasciotty Westchester County Jail Woeds Road.

Valhalla, NY 10595 9, Naima Johnson Westchester County Jail Woods Road Valhalla, NY 10595 10. Jenile Parchment Westchester County Jail Woods Road Valhalla, NY 10595 So EET eee UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CV.

Write the full name of each plaintiff. (Include case number if one has been assigned) AMENDED “against: COMPLAINT (Prisoner) Do you want a jury trial?

COCO OU Yes Ol No Write the full name of each defendant. If you cannot fit the names of all of the defendants in the space provided, please write “see attached” in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section IV.

NOTICE The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual’s full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include onty: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the fast four digits of a financial account number.

See Federal Rule of Civil Procedure 5.2.

Rev. 5/20/16 IL LEGAL BASIS FOR CLAIM State below the federal legal basis for your claim, if known. This form is designed primarily for prisoners challenging the constitutionality of their conditions of confinement; those claims are often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or in a “Bivens” action (against federal defendants).

Violation of my federal constitutional rights Other: Il. PLAINTIFF INFORMATION Each plaintiff must provide the following information. Attach additional pages if necessary.

First Name Middle Initial Last Name State any other names (or different forms of your name) you have ever used, including any name you have used in previously filing a lawsuit.

Prisoner ID # (if you have previously been in another agency’s custody, please specify each agency and the ID number (such as your DIN or NYSID) under which you were held)

Current Place of Detention

Institutional Address County, City State Zip Code II. PRISONER STATUS Indicate below whether you are a prisoner or other confined person: Pretrial detainee O Civilly committed detainee Immigration detainee L] Convicted and sentenced prisoner L] Other: Page 2 IV. DEFENDANT INFORMATION To the best of your ability, provide the following information for each defendant. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant.

Make sure that the defendants listed below are identical to those listed in the caption. Attach additional pages as necessary.

Defendant 1: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address County, City State Zip Code Defendant 2: First Name Last Name Shield # Current Job Title {or other identifying information) Current Work Address County, City State Zip Code Defendant 3: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address County, City State Zip Cade Defendant 4: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address County, City State Zip Code Page 3 Vv. STATEMENT OF CLAIM Place(s) of occurrence: Date(s) of occurrence: FACTS: State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach additional pages as necessary.

Page 4 INJURIES: □ lf you were injured as a result of these actions, describe your injuries and what medical treatment, □ if any, you required and received.

VI. RELIEF State briefly what money damages or other relief you want the court to order.

Page 5 VII, PLAINTIFF'S CERTIFICATION AND WARNINGS By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11.

1 understand that if I file three or more cases while I am a prisoner that are dismissed as frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in future cases.

I also understand that prisoners must exhaust administrative procedures before filing an action in federal court about prison conditions, 42 U.S.C. § 1997e{a), and that my case may be dismissed if I have not exhausted administrative remedies as required.

I agree to provide the Clerk's Office with any changes to my address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case.

Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated Plaintiff's Signature First Name Middle Initial Last Name Prison Address County, City State Zip Code Date on which | am delivering this complaint to prison authorities for mailing: Page 6