Wist v. Middletown Police Department

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ERIC KYLE WIST, Plaintiff, ORDER OF SERVICE -against- 22-CV-7570 (PMH) MIDDLETOWN POLICE DEPARTMENT, KELSEY GAGE, GREGORY HART, and MICHAEL RIBEIRO, Defendant.

PHILIP M. HALPERN, United States District Judge: Plaintiff, who is appearing pro se, brings this action under 42 U.S.C. § 1983, alleging that Defendant Police Officer Kelsey Gage, Gregory Hart, and Michael Ribeiro used excessive force during three separate arrests that occurred on September 6, 2020, January 6, 2021, and June 27, 2021. In addition to Officers Gage, Hart, and Ribeiro, Plaintiff also names as Defendant the City of Middletown Police Department (“MPD”). (Doc. 1). The Court deems the Complaint amended as to the newly identified Defendants.

Plaintiff is directed to, by June 28, 2023, file a letter with the Court via ECF advising whether it seeks to name as Defendant any other police officers who were present or who assisted in the arrests, as referenced in the arrest reports provided by the Middletown Police Department. (Doc. 9).

On December 5, 2022, Chief Judge Laura Taylor Swain granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis.1 As set forth in this order, the Court 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). directs service on Defendants, applies Local Civil Rule 33.2 to the action, and refers Plaintiff to the New York Legal Assistance Group.

DISCUSSION A. Order of Service 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.2 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 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 Defendants. The Clerk of Court is further instructed to issue a summons 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 summon is 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.

2 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 the summons and the complaint until the Court reviewed the complaint and ordered that the summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons is issued.

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 the date of this order, Defendants must serve responses to these standard discovery requests. In their responses, Defendants must quote each request verbatim.3 C. New York Legal Assistance Group Plaintiff may consult the legal clinic in this District that assists people who are parties in civil cases and do not have lawyers. The Clinic is run by a private organization called the New York Legal Assistance Group (“NYLAG”); it is not part of, or run by, the court (and, among other things, therefore cannot accept filings on behalf of the court, which must still be made by any pro se party through the 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, NY, NY 10007. Once the paperwork is received, the Clinic will coordinate contact with the litigant. Once the paperwork is 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 Clerk of Court is directed to mail an information package to Plaintiff.

3 If Plaintiff would like copies of these discovery requests before receiving the responses and does not have access to the website, Plaintiff may request them from the Pro Se Intake Unit.

The Clerk of Court is further instructed to issue a summons for the City of Middletown Police Department, Officer Kelsey Gage, Officer Gregory Hart, and Officer Michael Ribeiro, complete the USM-285 form with the addresses for these defendants, and deliver all documents necessary to effect service to the U.S. Marshals Service.

Copies of NYLAG Clinic’s flyer, retainer, and intake form are attached to this order.

Local Civil Rule 33.2 applies to this case.

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 IFP 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: White Plains, New York May 31, 2023 Moon ( PHILIP M. HALPERN United States District Judge DEFENDANTS AND SERVICE ADDRESS Middletown Police Department Kelsey Gage Officer Gregory Hart Officer Michael Ribeiro James Street Middletown, New York 10940 New York EEE Legal Assistance Group LEGAL CLINIC FOR PRO SE LITIGANTS IN THE SOUTHERN DISTRICT OF NEW YORK LIMITED SCOPE LEGAL ASSISTANCE RETAINER AGREEMENT retain the New York Legal Assistance Group (NYLAG) to provide you with limited scope legal assistance its Legal Clinic for Pro Se Litigants in the Southern District of New York (Clinic) under the terms set forth below.

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