Smolen, Jr. v. Wesley

Background

Samuel J. Smolen, Jr., who was incarcerated at Sullivan Correctional Facility, brought this pro se action under 42 U.S.C. § 1983 and state law. He alleged that the defendants violated his rights while he was incarcerated at Green Haven Correctional Facility. The court had previously allowed him to proceed without prepaying filing fees.

The court explained that a plaintiff proceeding without prepaying fees may rely on the court and the U.S. Marshals Service to serve defendants. Gregory Scharfenburg and Heather Dunn had been served with the original complaint but not the amended complaint, and they had not appeared. Donald Hobson and Empire State Ambulance had not been served with either complaint. Counsel for represented defendants provided addresses for the unserved defendants on June 16, 2020.

Order

The court extended the time to serve all four defendants with the amended complaint until 90 days after the summons is issued. It stated that, if service is not completed within that period, Smolen should request an extension of time.

The Clerk of Court was directed to prepare the necessary U.S. Marshals Service forms for Hobson and Empire State Ambulance, issue summonses, and deliver the required paperwork to the Marshals Service. The Clerk was also directed to mail the amended complaint to Scharfenburg and Dunn using addresses to be provided to the Clerk’s Office. The court directed that a copy of the order be mailed to Smolen.

Ruling and effect

Judge Philip M. Halpern ordered the procedures needed to serve the four defendants and extended the service deadline. The court also stated that Smolen must notify it in writing if his address changes and that the action may be dismissed if he fails to do so. The opinion did not decide the merits of Smolen’s claims.