McKinney v. Warwick New York Village Police Department

USDC SDNY DOCUMENT UNITED STATES DISTRICT COURT ELECTRONICALLY FILED SOUTHERN DISTRICT OF NEW YORK DOC #: DATE FILED: 3/15/2024 IVAN G. McKINNEY, Plaintiff, -against- 23-CV-10405 (NSR) WARWICK POLICE DEPARTMENT; OFFICER ORDER OF SERVICE JOHN DOE; CITY OF WARWICK NEW YORK, Defendants.

NELSON S. ROMAN, United States District Judge: Plaintiff van G. McKinney, who currently is incarcerated in New Jersey, brings this action pro se, alleging that on July 4, 1993, an officer with the Warwick Village Police Department sexually assaulted him. By order dated January 12, 2024, the court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.!

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.” 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)).

' 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). ? 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 1s issued.

To allow Plaintiff to effect service on Defendants Warwick Police Department and the Town of Warwick through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals Service Process Receipt and Return forms (“USM-285 forms”) for 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 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.

B. John Doe police officer Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the complaint, Plaintiff appears to supply sufficient information to permit the Warwick Police Department to identify the John Doe police officer who was involved in the incident allegedly occurring on July 4, 1993. It is therefore ordered that the Warwick Police Department must ascertain the identity of the Doe police officer who Plaintiff seeks to sue here and the address where that defendant may be served. The Warwick Police Department must provide this information to Plaintiff and the Court within sixty days of the date of this order.

Within thirty days of receiving this information, Plaintiff must file an amended complaint naming the Doe defendant. The amended complaint will replace, not supplement, the original complaint. 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 the Clerk of Court to complete the USM-285 form with the address for the newly named defendant and deliver all documents necessary to effect service to the U.S. Marshals Service.

CONCLUSION The Clerk of Court is directed to: (1) issue summonses for the Town of Warwick and the Warwick Police Department, complete the USM-285 forms with the address for Defendants, and deliver all documents necessary to effect service to the U.S. Marshals Service; (2) mail a copy of this order and the complaint to the Town of Warwick Police Department, 132 Kings Highway, Warwick, N.Y. 10990; and (3) mail an information package and a copy of this Order to Plaintiff at the address listed on ECF.

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).

SO ORDERED.

Dated: March 15, 2024 White Plains, New York NELSON S.ROMAN United States District Judge DEFENDANT AND SERVICE ADDRESS Town of Warwick Kings Highway Warwick, N.Y. 10990 Warwick Police Department Kings Highway Warwick, N.Y. 10990