Gutierrez v. Rappa
- Cathy Seibel
- 7:20-cv-04490
- U.S. District Court · Southern District of New York
- 4
In Gutierrez v. Rappa, Judge Seibel ordered Marshals service for the plaintiff’s claims and denied permission to appeal without prepaying fees.
Freddy Pinto Gutierrez, R. Rappa, Dan Garcia, C.O. J. Rojas, and Mary Ashong; the Clerk of Court and the U.S. Marshals Service were directed to arrange service.
What happened
In Gutierrez v. Rappa, Freddy Pinto Gutierrez, who is incarcerated and representing himself, sued R. Rappa, Dan Garcia, C.O. J. Rojas, and Mary Ashong. He alleges that the defendants were deliberately indifferent to a serious risk of harm and also brings state-law claims.
Because Gutierrez had permission to proceed without prepaying filing fees, the court directed the Clerk to prepare summonses and service forms and to send the necessary papers to the U.S. Marshals Service. The court extended the service deadline to 90 days after the summonses are issued and instructed Gutierrez to notify the court if his address changes.
Judge Cathy Seibel ordered the Clerk to mail Gutierrez the order and an information package and to arrange service on the four defendants. The court also denied permission to appeal without prepaying fees, stating that an appeal from the order would not be taken in good faith.
The detailed version
- Gutierrez v. Rappa · No. 7:20-cv-04490
- Cathy Seibel
- June 12, 2020
Background
Freddy Pinto Gutierrez, who is incarcerated at Green Haven Correctional Facility and is proceeding without a lawyer, brought this action under 42 U.S.C. § 1983. He asserts claims for deliberate indifference to a serious risk of harm and claims arising under state law against R. Rappa, Dan Garcia, C.O. J. Rojas, and Mary Ashong. The court had granted Gutierrez permission to proceed without prepaying filing fees.
Service of process
Because Gutierrez was proceeding without prepaying fees, the court explained that he could rely on the court and the U.S. Marshals Service to serve the defendants. Service of process is the formal delivery of the summons and complaint notifying defendants of the lawsuit. The court directed the Clerk of Court to complete a U.S. Marshals Service Process Receipt and Return form for each defendant, issue the summonses, and deliver the required documents to the Marshals Service.
Federal Rule of Civil Procedure 4(m) generally requires service within 90 days after a complaint is filed. The court extended Gutierrez’s service deadline to 90 days after the summonses are issued because he could not serve the defendants until the court reviewed the complaint and ordered the summonses issued. The court stated that, if service is not completed within that period, Gutierrez should request an extension of time.
Other directives and ruling
The court instructed Gutierrez to notify it in writing if his address changes and warned that the action may be dismissed if he fails to do so. The Clerk was directed to mail Gutierrez a copy of the order and an information package and to arrange service on Mary Ashong, Dan Garcia, R. Rappa, and Correction Officer J. Rojas at Green Haven Correctional Facility.
The court certified under 28 U.S.C. § 1915(a)(3) that an appeal from this order would not be taken in good faith. It therefore denied permission to appeal without prepaying fees. The order addresses service and related procedural matters; it does not state a decision on the merits of Gutierrez’s claims.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.