Rizzuto v. Annucci

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ALFONSO RIZZUTO, Plaintiff, 22-CV-7698 (CS) -against- ORDER OF SERVICE ANTHONY ANNUCCI, et al., Defendants.

CATHY SEIBEL, United States District Judge: Plaintiff, who is appearing pro se, brings this action under 42 U.S.C. § 1983 and the Americans with Disabilities Act of 1990, arising from events that occurred in 2019, when he was incarcerated in Woodbourne Correctional Facility (“Woodbourne”). Plaintiff asserts that Defendants violated his rights by providing him inadequate medical care for a serious medical condition, failing to reasonably accommodate his disability, and failing to properly handle his grievances. By order dated September 9, 2022, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.

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.1 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

1 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 served summonses and the complaint until the Court reviewed the complaint and ordered that summonses be issued. The Court therefore extends the time to serve until 90 days after the date summonses are issued. 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)).

To allow Plaintiff to effect service on Defendants Anthony Annucci, Acting Commissioner of the New York State Department of Corrections and Community Supervision (“DOCCS”); John Morley, Deputy Commissioner/Chief Medical Officer of DOCCS; Mary Anne McGrath, Associate Commissioner Population Management of DOCCS; Lynn Lilley, former Superintendent of Woodbourne; Reed Barnofsky, Grievance Director at Woodbourne; Denisha Goodman, Deputy Superintendent at Woodbourne; David Howard, Deputy Superintendent at Woodbourne; Miriam Weig, Nurse Administrator at Woodbourne; William Holloran, Lieutenant at Woodbourne; Frank Klepsis, Plant Superintendent at Woodbourne; and Ashley Harris-Baker, Nurse/Physician Assistant at Woodbourne, 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 each 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 Defendants.

If the complaint is not served within 90 days after the date the summonses are 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).

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 directed to issue summonses for Annucci, Morley, McGrath, Lilley, Barnofsky, Goodman, Howard, Weig, Holloran, Klepsis, and Harris-Baker, complete the USM- forms with the addresses for these defendants, and deliver all documents necessary to effect service to the U.S. Marshals Service.

The Clerk of Court is also directed to mail an information package to Plaintiff.

SO ORDERED.

Dated: January 18, 2023 White Plains, New York A { g CATHY SEIBEL United States District Judge DEFENDANTS AND SERVICE ADDRESSES Anthony Annucci NYS DOCCS Acting Commissioner 1220 Washington Avenue Albany, NY 12226 John Morley, MD NYS DOCCS Deputy Commissioner/Chief Medical Officer 1220 Washington Avenue Albany, NY 12226 Mary Anne McGrath NYS DOCCS Associate Commissioner Population Management 1220 Washington Avenue Albany, NY 12226 Lynn Lilley Former Superintendent of Woodbourne Correctional Facility Institution Road Napanoch, NY 12458 Reed Barnofsky Grievance Director Woodbourne Correctional Facility Prison Road Woodbourne, NY 12788 Denisha Goodman Deputy Superintendent Woodbourne Correctional Facility Prison Road Woodbourne, NY 12788 David Howard Deputy Superintendent Woodbourne Correctional Facility Prison Road Woodbourne, NY 12788 Miriam Weig Nurse Administrator Woodbourne Correctional Facility Prison Road Woodbourne, NY 12788 William Holloran Lieutenant Woodbourne Correctional Facility Prison Road Woodbourne, NY 12788 Frank Klepsis Plant Superintendent Woodbourne Correctional Facility Prison Road Woodbourne, NY 12788 Ashley Harris-Baker Nurse/Physician Assistant Woodbourne Correctional Facility Prison Road Woodbourne, NY 12788