Almonte v. Doe

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JOEL ALMONTE, Plaintiff, -against- 24-CV-0818 (CS) JOHN DOE, Dep. of Security; JOHN DOES, ORDER OF SERVICE Extraction team, in their individual capacities; AREA S.G.T., in his individual capacity, Defendants.

CATHY SEIBEL, United States District Judge: Plaintiff Joel Almonte, who is currently incarcerated at Upstate Correctional Facility, filed this civil rights complaint pro se alleging that, while he was incarcerated at Fishkill Correctional Facility, multiple John Doe Defendants violated his rights. (ECF No. 1.) By order dated February 16, 2024, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. (ECF No. 8.) On February 27, 2024, the Court issued a Valentin Order, in which it ordered the New York State Attorney General to ascertain the identity and badge number of each John Doe who Plaintiff seeks to sue and the addresses where they may be served. (ECF No. 10 at 2.) The Court also ordered that within thirty days of receiving this information, Plaintiff must file an amended complaint naming the John Doe Defendants. (Id.) On April 11, 2024, the New York State Attorney General provided the names and addresses of potential defendants. (ECF No. 14.) On June 4, 2024, after being granted an extension of time to file an amended complaint, Plaintiff filed the Amended Complaint naming six Defendants. (ECF No. 18.)

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 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 C.O. James D. Emsworth, C.O. Richard G. Montross, C.O. Patrick Bolbrock, Correctional Sergeant John P. Broas, Retired C.O. Chris J.

Moricone, and Sergeant Matthew K. Allers 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- form”) for each of these 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 each of these defendants.

If the complaint is not served within 90 days after the date the summons 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.

1Although 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 effected service until the Court reviewed the complaint and ordered that a summons be issued. The Court therefore extends the time to serve until 90 days after the summons is issued.

CONCLUSION The Clerk of Court is instructed to issue a summons for Defendants C.O. James D.

Emsworth, C.O. Richard G. Montross, C.O. Patrick Bolbrock, Correctional Sergeant John P. Broas, Retired C.O. Chris J. Moricone, and Sergeant Matthew K. Allers, complete the USM-285 form with the address for each of these defendants, and deliver all documents necessary to effect service to the U.S. Marshals Service.

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

SO ORDERED.

Dated: June 11, 2024 Cte Seske g White Plains, New York CATHY SEIBEL- United States District Judge SERVICE ADDRESS FOR EACH DEFENDANT 1. C.O. James D. Emsworth, #41689 Fishkill Correctional Facility Strack Drive Beacon, NY 12508-0307 2. C.O. Richard G. Montross, #38628 Fishkill Correctional Facility Strack Drive Beacon, NY 12508-0307 3. C.O. Patrick Bolbrock, #57344 Fishkill Correctional Facility Strack Drive Beacon, NY 12508-0307 4. Correctional Sergeant John P. Broas, #4282 Fishkill Correctional Facility Strack Drive Beacon, NY 12508-0307 5. Retired C.O. Chris J. Moricone Chris J. Moricone, c/o Department of Corrections and Community Supervision, Office of Counsel 1220 Washington Avenue, Building 4 Albany, NY 12226-2050 6. Sgt. Matthew K. Allers, #3842 Fishkill Correctional Facility Strack Drive Beacon, NY 12508-0307