7:20-cv-06992
S.D.N.Y.Nov 10, 2020Background:
- Plaintiff Anthony Arriaga, a pro se detainee at Sing Sing, filed a § 1983 complaint against Joana Otaiza and Donald Venetozzi and was granted in forma pauperis status.
- The Court ordered the U.S. Marshals Service to effect service, but the Marshals returned an unexecuted service form for Defendant Otaiza.
- Arriaga provided a residential address; the Court directed the Clerk to prepare a new USM-285 with a NYSDOCCS Albany address (1220 Washington Ave., Bldg. 2) and to issue a summons for Marshals to serve Otaiza.
- The Court explained Rule 4(m) timing: because Arriaga is proceeding IFP and could not serve before the court issued summonses, the time to serve is extended to 90 days after the summons is issued.
- The Court instructed that if the Marshals cannot serve Otaiza at the DOCCS address, it will order the New York State Attorney General under Valentin to identify a residential address for service.
- The Clerk was ordered to mail this order and an info package to Plaintiff and to deliver all materials necessary for service to the U.S. Marshals Service.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the U.S. Marshals must effect service for an IFP plaintiff | Arriaga relies on the Court/Marshals to serve him after IFP status | Not asserted | Court ordered Clerk to prepare USM-285 and directed Marshals to serve Otaiza at DOCCS address |
| Whether service time under Rule 4(m) should be extended | Arriaga could not serve until the Court reviewed the complaint and issued summonses | Not asserted | Court extended service period to 90 days after summons issuance and warned plaintiff to request further extension if needed |
| Whether the Court may compel the State AG to identify a residential address if Marshals fail to serve | Arriaga requested an alternate residential address for Otaiza | Not asserted | Court held it will issue a Valentin order directing the NY AG to provide a residential address if Marshals cannot serve at DOCCS |
Key Cases Cited
- Walker v. Schult, 717 F.3d 119 (2d Cir. 2013) (IFP plaintiffs may rely on the court and Marshals Service to effect service)
- Meilleur v. Strong, 682 F.3d 56 (2d Cir. 2012) (plaintiff must request an extension if service is not made within Rule 4(m))
- Murray v. Pataki, [citation="378 F. App'x 50"] (2d Cir. 2010) (Marshals' failure to effect service for IFP plaintiff constitutes good cause for extension)
- Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (courts may order state agencies, including the attorney general, to disclose a defendant’s address for service)