Lurch, Jr. v. Berry
- Philip Halpern
- 7:20-cv-02312
- U.S. District Court · Southern District of New York
- 4
In Lurch, Jr. v. Berry, Judge Halpern ordered the U.S. Marshals Service to serve the defendant and extended the service deadline.
Robert Derek Lurch Jr. is affected because the order sets the procedure and deadline for serving Margaret Berry. Berry, the Clerk of Court, and the U.S. Marshals Service are affected by the service instructions.
What happened
Robert Derek Lurch Jr. v. Margaret Berry, Nurse concerns a lawsuit Lurch brought without a lawyer under a federal civil-rights law. He alleges that Berry violated his rights while he was incarcerated at Fishkill Correctional Facility. He had already received permission to proceed without paying court fees up front.
The court directed the Clerk of Court to prepare the service paperwork, issue a summons, and give the necessary documents to the U.S. Marshals Service. The court extended the service deadline to 90 days after the summons is issued. Lurch must ask for more time if service is not completed by then and must notify the court if his address changes.
Judge Philip M. Halpern ordered service through the Marshals Service and warned that the case could be dismissed if Lurch does not update his address. The court also denied permission to proceed without paying fees for an appeal from this order.
The detailed version
- Lurch, Jr. v. Berry · No. 7:20-cv-02312
- Philip Halpern
- Apr. 23, 2020
Background
Robert Derek Lurch Jr. filed this action without a lawyer under 42 U.S.C. § 1983, a federal law used to seek relief for certain violations of constitutional rights by state or local officials. He alleges that Margaret Berry, identified as a nurse, violated his rights while he was incarcerated at Fishkill Correctional Facility. At the time of the order, Lurch was detained at the Vernon C. Bain Center on Rikers Island.
The opinion states that the case had previously been transferred to the Northern District of New York and that court later severed the claim concerning Fishkill Correctional Facility and transferred it back to the Southern District of New York. Lurch had previously been granted permission to proceed without prepaying fees, commonly called in forma pauperis status or IFP status.
Service of Process
Because Lurch was proceeding IFP, the court explained that he could rely on the court and the U.S. Marshals Service to serve Berry. Although the usual deadline for serving a summons and complaint is 90 days after filing, the court extended the deadline here to 90 days after the summons is issued because Lurch could not serve the papers before the court reviewed the complaint and ordered issuance of the summons.
The court stated that, if service is not completed within that period, Lurch should request an extension of time. It also required him to notify the court in writing if his address changes and stated that the action may be dismissed if he fails to do so.
Ruling
Judge Philip M. Halpern directed the Clerk of Court to complete a U.S. Marshals Service Process Receipt and Return form for Berry, issue a summons, and deliver the required documents to the Marshals Service. The Clerk was also directed to mail Lurch a copy of the order and an information package.
The court certified that an appeal from the order would not be taken in good faith and denied IFP status for purposes of an appeal. This order addresses service and related filing matters; the opinion does not decide whether Lurch's underlying allegations are legally or factually valid.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.