Rivera v. Annucci et al
| Albert Rivera |
| A. Russo, M. Royce, T. Ott, John Doe and Anthony Annucci |
| 7:2019cv10425 |
| November 8, 2019 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| Colleen McMahon |
| Nelson Stephen Roman |
| Prisoner: Prison Condition |
| 42 U.S.C. § 1983 |
| None |
Docket Report
RSS Track this Docket
This docket was last retrieved on June 11, 2021. A more recent docket listing may be available from PACER.
| Document Text |
|---|
Filing 11
INFORMATION PACKAGE MAILED to Albert Rivera 16-A-4080 Greenhaven Correctional Facility P.O. Box 4000 Stormville, NY 12582, at, on 12/9/2019 Re: #10 Order of Service. The following document(s) were enclosed in the Service Package: a copy of the order of service or order to answer and other orders entered to date, the individual practices of the district judge and magistrate judge assigned to your case, Instructions for Litigants Who Do Not Have Attorneys, Notice Regarding Privacy and Public Access to Electronic Case Files, a Motions guide, a notice that the Pro Se Manual has been discontinued, a Notice of Change of Address form to use if your contact information changes, a handout explaining matters handled by magistrate judges and consent form to complete if all parties agree to proceed for all purposes before the magistrate judge. (nb)
|
| FRCP 4 SERVICE PACKAGE HAND DELIVERED TO U.S.M.: on 12/9/2019 Re: Judge Nelson Stephen Roman #10 Order of Service. The following document(s) were enclosed in the Service Package: Summons, IFP, Order of Service, Completed U.S.M. form(s) for defendant(s) Anthony Annucci, T. Ott, M. Royce, A. Russo. (nb) |
| Mailed a copy of #10 Order of Service, #2 Complaint to New York State Attorney General 28 Liberty Street, 16th Floor New York, NY 10005. (nb) |
| SUMMONS ISSUED as to Anthony Annucci, T. Ott, M. Royce, A. Russo. (nb) |
|
Filing 10
ORDER OF SERVICE: To allow Plaintiff to effect service on Defendants Correction Officer T. Ott, New York State Department of Corrections and Community Supervision (DOCCS) Commissioner Anthony Annucci, Green Haven Superintendent M. Royce, and Green Haven Deputy Superintendent of Security A. Russo 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 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 these defendants. Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so. 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 supplies sufficient information to permit the DOCCS to identify the John Doe Correction Officer on duty with Correction Officer T. Ott at the Green Haven C & D recreation yard at about 6:40 p.m. on October 11, 2019. It is therefore ordered that the New York State Attorney General, which is the attorney for and agent of the DOCCS, must ascertain the identity and badge number of the John Doe Correction Officer whom Plaintiff seeks to sue here and the address where the defendant may be served. The New York State Attorney General must provide this information to Plaintiff and the Court within sixty days of the date of this order. Within thirty days after receiving this information, Plaintiff must file an amended complaint naming the John Doe defendant. The amended complaint will replace, not supplement, the original complaint. An amended complaint form for Plaintiff to complete after receiving this information 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 forms with the address for the named John Doe Defendant and deliver to the U.S. Marshals Service all documents necessary to effect service. Plaintiff requests pro bono counsel. Under the IFP statute, a court has no authority to "appoint" counsel in a civil action but instead, may only "request" that an attorney volunteer to represent a litigant. Mallard v. US. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 301-310 (1989). Courts must therefore grant applications for pro bono counsel sparingly, and with reference to public benefit, in order to preserve the "precious commodity" of volunteer-lawyer time. Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172-73 (2d Cir. 1989). The factors to be considered in ruling on an indigent litigant's request for counsel include the merits of the case, Plaintiff's efforts to obtain a lawyer, and Plaintiff's ability to gather the facts and present the case if unassisted by counsel. Id. at 172; Hodge v. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are "[t]he factor which command[s] the most attention." Cooper, 877 F.2d at 172. Because it is too early in the proceedings for the Court to assess the merits of the action, Plaintiff's motion for counsel is denied without prejudice to renewal at a later date. 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 the complaint, Defendants must serve responses to these standard discovery requests. In their responses, Defendants must quote each request verbatim. The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package. Local Civil Rule 33.2 applies to this action. Plaintiff's motion for pro bono counsel is denied without prejudice. The Clerk of the Court is directed to terminate the motion at ECF No. 3. The Clerk of Court is further instructed to complete the USM-285 forms with the addresses for Defendants Correction Officer T. Ott, DOCCS Commissioner Anthony Annucci, Green Haven Superintendent M. Royce, and Green Haven Deputy Superintendent of Security A. Russo and deliver to the U.S. Marshals Service all documents necessary to effect service. The Clerk of Court is directed to mail a copy of this order and the complaint to the New York State Attorney General at: 28 Liberty Street, 16th Floor New York, NY 10005. An "Amended Complaint" form is attached to this order. 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 in forma pauperis 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)., Motions terminated: #3 MOTION to Appoint Counsel. filed by Albert Rivera. (Signed by Judge Nelson Stephen Roman on 12/5/2019) (rj) Transmission to Pro Se Assistants for processing.
|
|
Filing 8
ORDER GRANTING IFP APPLICATION IN PRISONER CASE: Plaintiff's application for leave to proceed without prepayment of fees is granted. A prisoner bringing a civil action is required to pay the full $350 filing fee even when proceeding in forma pauperis (IFP), that is, without prepayment of fees.... The Court must collect, when funds exist in a prisoner's account, an initial partial filing fee plus monthly payments. The Clerk of Court is directed to send a copy of this order and the prisoner authorization to the agency having custody of Plaintiff. That agency is directed to forward copies of Plaintiff's prison trust fund account for the past six months and to disburse the payments required under 28 U.S.C. 1915 to the United States District Court for the Southern District of New York and to include the above docket number on the disbursement before sending it to the Court. If Plaintiff is transferred to another facility, the current facility shall provide a copy of this order to the facility to which Plaintiff is transferred. The Clerk of Court is also directed to send a copy of this order to Plaintiff and note service on the docket. Finally, it is Plaintiff's obligation to promptly submit a written notification to the Court if Plaintiff's address changes, and the Court may dismiss the action if Plaintiff fails to do so. (Signed by Judge Colleen McMahon on 12/4/2019) (va) Transmission to Docket Assistant Clerk for processing.
|
| NOTICE OF CASE REASSIGNMENT to Judge Nelson Stephen Roman. Judge Colleen McMahon is no longer assigned to the case. (wb) |
| Mailed a copy of #8 Order Granting IFP Application in Prisoner Case to Albert Rivera 16-A-4080 Greenhaven Correctional Facility P.O. Box 4000 Stormville, NY 12582 and to The Superintendent Greenhaven Correctional Facility P.O. Box 4000 Stormville, NY 12582 . (nb) |
| Case Designated Local Rule 33.2. (keb) |
| Magistrate Judge Lisa M. Smith is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: #https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf. (wb) |
| Filing 7 AMENDED APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS. Document filed by Albert Rivera.(sc) |
| Filing 6 PRISONER AUTHORIZATION. Document filed by Albert Rivera.(sc) |
| NOTICE OF CASE REASSIGNMENT - SUA SPONTE to Judge Colleen McMahon. Judge Unassigned is no longer assigned to the case. (bcu) |
| Mailed a copy of #5 Order Directing Payment of Fee or IFP Application & Prisoner Authorization, to Albert Rivera 16-A-4080 Greenhaven Correctional Facility P.O. Box 4000 Stormville, NY 12582. (vba) |
|
Filing 5
ORDER DIRECTING PAYMENT OF FEE OR UPDATED IFP APPLICATION & PRISONER AUTHORIZATION: Plaintiff is directed to render payment of the filing fee or submit an IFP application & Prisoner Authorization to this Court's Pro Se Office within thirty (30) days of the date of this Order. The Clerk of Court is directed to assign this matter to my docket. The Court certifies, pursuant to 28 U.S.C. 1915(a)(3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Filing Fee due by 12/12/2019. In Forma Pauperis (IFP) Application due by 12/12/2019. Prisoner Authorization Form due by 12/12/2019. (Signed by Judge Colleen McMahon on 11/12/2019) (Attachments: #1 amended IFP Application, #2 prisoner authorization)(keb) Transmission to Docket Assistant Clerk for processing.
|
| Filing 4 DECLARATION in Support re: #1 Request to Proceed In Forma Pauperis. Document filed by Albert Rivera. (rdz) |
| Filing 3 MOTION for Appointment of Counsel. Document filed by Albert Rivera.(rdz) |
| Filing 2 COMPLAINT against Anthony Annucci, John Doe, T. Ott, M. Royce, A. Russo. Document filed by Albert Rivera.(rdz) |
| Filing 1 REQUEST TO PROCEED IN FORMA PAUPERIS. Document filed by Albert Rivera.(rdz) |
Access additional case information on PACER
Use the links below to access additional information about this case on the US Court's PACER system. A subscription to PACER is required.
Access this case on the New York Southern District Court's Electronic Court Filings (ECF) System
- Search for Party Aliases
- Associated Cases
- Attorneys
- Case File Location
- Case Summary
- Docket Report
- History/Documents
- Parties
- Related Transactions
- Check Status
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
