Allen v. Aitken

UNITED STATES DISTRICT COURT SE tie □□ SOUTHERN DISTRICT OF NEW YORK GARNER ALLEN, | PUES es Pe □□ aintiff, OS We □□ Ww -against- 7:23-CV-2149 (VB) CORRECTIONAL OFFICER DEVERON D.

AITKEN; CORRECTIONAL OFFICER ORDER OF SERVICE JONELLE 8S. BISSESSAR; SERGEANT KENNETH L. JAMES; JOHN DOE, (Nurse at Sing Sing Correctional Facility), Defendants.

VINCENT L. BRICCETTI, United States District Judge: Plaintiff Garner Allen, who is currently incarcerated in the Sing Sing Correctional Facility (“Sing Sing”), brings this pro se action asserting claims under 42 U.S.C. § 1983 and under state law.' He seeks damages and sues: (1) Correctional Officer Deveron D. Aitken; (2) Correctional Officer Jonelle S. Bissessar; (3) Correctional Sergeant Kenneth L. James; and (4) “John Doe,” an unidentified Sing Sing nurse.

By order dated March 14, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.” As discussed below, the Court: (i) directs service of the complaint (Doc. #1) and Plaintiff’s letter (Doc. #6) on the identified defendants; (ii) directs the identified defendants to comply with Local Civil Rule 33.2; and (iii) directs the ! The Court construes Plaintiff’s letter filed after his complaint (Doc. #6) as a supplement to the complaint. ? Prisoners are not exempt from paying the full filing fee, even when they have been granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1).

Attorney General of the State of New York to provide to the Court and Plaintiff the identity and service address of the unidentified “John Doe” defendant.

DISCUSSION A. Service on Defendants Aitken, Bissessar, and James 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).

To allow Plaintiff to effect service on Defendants Aitken, Bissessar, and James 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 of those defendants. The Clerk of Court is further instructed to issue a summons for each of those defendants and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon those defendants.

If the complaint (Doc. #1) and Plaintiff’s letter (Doc. #6) are not served on those defendants 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).

3 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, the complaint (Doc. #1), and the letter (Doc. #6) until the Court reviewed the complaint and the letter and ordered that summonses be issued. The Court therefore extends the time to serve until 90 days after the date that summonses are issued.

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. Local Civil Rule 33.2 Local Civil Rule 33.2, which requires defendants in certain types of prisoner cases to respond to specific, court-ordered discovery requests, applies to this action. Those discovery requests are available on the Court’s website under “Forms” and are titled “Plaintiff’s Local Civil Rule 33.2 Interrogatories and Requests for Production of Documents.” Within 120 days of service of process, the identified defendants (Defendants Aitken, Bissessar, and James) must serve responses to those standard discovery requests. In their responses, those defendants must quote each request verbatim.* C. Unidentified “John Doe” Defendant Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying an unidentified defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the complaint (Doc. #1), Plaintiff supplies sufficient information to permit the New York State Department of Corrections and Community Supervision (““DOCCS”) to identify the unidentified “John Doe” defendant, a Sing Sing nurse who examined and/or treated Plaintiff at Sing Sing on or about November 27, 2022.

It is therefore ordered that the Attorney General of the State of New York, who is the attorney for and agent of DOCCS, must ascertain the identity and service address of the unidentified “John Doe” defendant whom Plaintiff seeks to sue here. The Attorney General must provide this information to the Court and Plaintiff within 60 days of the date of this order.

4 Tf Plaintiff would like copies of those discovery requests before receiving the responses and does not have access to the website, Plaintiff may request them from the court’s Pro Se Intake Unit.

Within 30 days of receiving this information, Plaintiff must file an amended complaint naming the newly identified defendant. The amended complaint will replace, not supplement, the original complaint (Doc. #1). An amended complaint form that Plaintiff should complete is attached to this order. Once Plaintiff has filed an amended complaint, the Court will screen the amended complaint and, if necessary, issue an order directing service on the newly identified defendant and directing that defendant’s compliance with Local Civil Rule 33.2.

D. New York Legal Assistance Group (NYLAG) Plaintiff may consult the legal clinic opened in this judicial district to assist people who are parties in civil cases, but who do not have lawyers. The clinic is operated by a private organization called the New York Legal Assistance Group (“NYLAG”); it is not part of, or operated by, the court (and, among other things, therefore, it cannot accept filings on behalf of the court, which must still be filed by a pro se party in the court’s Pro Se Intake Unit).

To receive limited-scope assistance from the clinic, Plaintiff may mail a signed retainer and intake form to the NYLAG Pro Se Clinic at 40 Foley Square, LL22, New York, New York 10007. Once the paperwork is received, the clinic will coordinate contact with the litigant. Once received, it may take up to two weeks for the clinic to contact the litigant. Copies of the clinic’s flyer, retainer, and intake form are attached to this order.

CONCLUSION The Court directs the Clerk of Court to mail an information package to Plaintiff.

The Court also directs the Clerk of Court to issue summonses for Defendants Aitken, Bissessar, and James; complete USM-285 forms with the addresses of those defendants; and deliver all documents necessary to effect service of the complaint (Doc. #1) and Plaintiff’s letter (Doc. #6) on those defendants to the U.S. Marshals Service.

The Court further directs the identified defendants (Defendants Aitken, Bissessar, and James) to comply with Local Civil Rule 33.2 within 120 days of service of process.

The Court additionally directs the Clerk of Court to mail a copy of this order, the complaint (Doc. #1), and the letter (Doc. #6) to the Attorney General of the State of New York at Liberty Street, 16th Floor, New York, New York 10005.

An amended complaint form is attached to this order.

A flyer, retainer, and intake form from NYLAG are also attached to this order.

SO ORDERED.

Dated: April 6, 2023 White Plains, New York Luu Iu ~-VINCENTL.BRICCETTI United States District Judge DEFENDANTS AND SERVICE ADDRESSES 1. Correctional Officer Deveron D. Aitken Sing Sing Correctional Facility Hunter Street Ossining, NY 10562-5442 2. Correctional Officer Jonelle S. Bissessar Sing Sing Correctional Facility Hunter Street Ossining, NY 10562-5442 3. Correctional Sergeant Kenneth L. James Sing Sing Correctional Facility Hunter Street Ossining, NY 10562-5442 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? sssSsmamII000 □□ DYes ULINo Write the full name of each defendant. !f 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 only: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number.

See Federal Rule of Civil Procedure 5.2.

Rev. 5/20/16 I, 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).

CL] 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 III, PRISONER STATUS Indicate below whether you are a prisoner or other confined person: Pretrial detainee C] Civilly committed detainee [] Immigration detainee L] Convicted and sentenced prisoner 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 Code Defendant 4: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address County, City State Zip Code Page 3 V. 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: if 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 anonfrivolous 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.

I 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 N Y d A G Since 1990, NYLAG has provided free civil legal services to New Yorkers who cannot afford private attorneys.

New York HE Legal Assistance Group Free Legal Assistance for Self-Represented Incarcerated Civil Litigants in Federal District Court NYLAG Legal Clinic for Pro Se Litigants in The Clinic Can: Southern District of New York is a'free legal ._ inic staffed by attorneys, law students,and ~ _ □□ Assist with amending complaints and responding to to assist those who are representing motions to dismiss; or planning to represent themselves, _ = Represent litigants for settlement purposes and, in incarcerated litigants, in civil lawsuits in) | limited circumstances, for depositions; Southern District of New York federal court, . __» Assist with written discovery; habeas cases, The clinicis not partofor — » Recruit pro bono counsel for depositions and trial; by the court. le ees oe and ifa litigant has consulted with Clinic staff, oC Assist with oppositions to summary Judgment. less they retain other counsel andthatcounsel =. . . eee Clinic staff cannot assist with habeas cases or a notice of appearance, theyremain SOT “as eriminal matters. areresponsiblefordoing is necessary in connection with the case, _ NYLAG may also be unable to assist if it determines, in must still ee ee its professional legal judgement, that (i) you have ee i a Danie refused to cooperate with the Clinic’s counsel or follow a a oar Ouse, 40. Oey quare __ the Clinic’s advice; (ii) any assistance would be ew York, New York, or by following the court's —_/ «pee ves el te ae wae | unreasonably difficult for NYLAG to carry out; or (iii) for filing yia email as a pro se litigant. . : : ee your case is or will become frivolous, unreasonable, groundless, or without merit. ontacting the Clinic: contact the clinic and request a copy of our retainer, please call (212) 659-6190 and leave a message or to us at the following address: NYLAG Legal Clinic for Pro Se Litigants Thurgood Marshall Federal Courthouse Room LL22 Foley Square New York, NY 10007 mail a signed retainer back to the clinic at the above address. Once the paperwork is received, clinic will contact you. It may take up to two weeks.

Disclaimer: The information contained herein is for informational purposes only and is not legal advice or a substitute for legal counsel, nor does it constitute advertising or a solicitation.

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