Tolliver v. Jordan

Background

Eric Tolliver, currently incarcerated at Sing Sing Correctional Facility, brought this case without a lawyer under 42 U.S.C. § 1983. He alleged that the defendants transferred him to another facility in retaliation for filing grievances. The complaint named Lieutenant Jordan, Correction Officer DePalo, Correction Officer E. Bonnell, and four unidentified defendants: John Doe #1, Jane Doe #1, John Doe #2, and Jane Doe #2. The opinion describes the unidentified defendants as Movement and Control officers at the New York State Department of Corrections and Community Supervision who allegedly were responsible for transfers from Sullivan Correctional Facility to Attica Correctional Facility and then to Five Points Correctional Facility.

The court had previously allowed Tolliver to proceed without prepaying filing fees. This is commonly called proceeding in forma pauperis, meaning the plaintiff may rely on the court and the U.S. Marshals Service to handle service of process.

Identifying the Unnamed Defendants

The court found that Tolliver had provided enough information for the Department of Corrections and Community Supervision to identify the two John/Jane Doe Movement and Control officers and determine where they could be served. Under the procedure described in the opinion, the New York State Attorney General, as the attorney for and agent of that department, was ordered to provide the identities and service addresses to Tolliver and the court within 60 days of the order.

Within 30 days after receiving that information, Tolliver must file an amended complaint naming the Doe defendants. The amended complaint will replace the original complaint rather than add to it. The court stated that it will screen the amended complaint and, if necessary, direct the Clerk to prepare the documents needed for service.

Service on the Identified Defendants

Because Tolliver was allowed to proceed without prepaying fees, the court directed the Clerk to prepare U.S. Marshals Service Process Receipt and Return forms for Lieutenant Jordan, Correction Officer DePalo, and Correction Officer E. Bonnell. The Clerk must issue summonses and send the necessary paperwork to the U.S. Marshals Service so those defendants can be served.

The court extended the time for service to 90 days after the summonses are issued. It stated that Tolliver must request an extension if service is not completed within that period. The court also instructed Tolliver to notify the court in writing of any address change and stated that failure to do so could result in dismissal of the action.

Disposition

The court entered an order of service: it directed the Attorney General to identify the Doe defendants, required a later amended complaint naming them, and directed the Clerk and U.S. Marshals Service to carry out service on the identified defendants. The order does not state a decision on whether Tolliver’s retaliation allegations are ultimately valid. The court also certified that an appeal from the order would not be taken in good faith and denied permission to proceed without prepaying fees for purposes of an appeal.