Tolliver v. Jordan
- Philip Halpern
- 7:19-cv-11823
- U.S. District Court · Southern District of New York
- 4
In Tolliver v. Jordan, Judge Halpern ordered service on two newly identified defendants and denied fee-free appeal status.
Eric Tolliver, who may rely on the court and the U.S. Marshals Service for service, and Gabriela Vega and Richard Houck, who are to be served.
What happened
Eric Tolliver, who is incarcerated and representing himself, sued correctional officials under a federal civil-rights law, alleging that he was transferred in retaliation for filing grievances. The opinion concerns serving the defendants, not whether those allegations are true.
The court directed the Clerk to prepare service forms and summonses for Gabriela Vega and Richard Houck and to give the necessary papers to the U.S. Marshals Service. It extended the service deadline until 90 days after the summonses are issued and said Tolliver must request more time if service is not completed. He must also notify the court of any address change.
Judge Philip M. Halpern issued the order and denied Tolliver permission to appeal without paying fees, certifying that an appeal would not be taken in good faith.
The detailed version
- Tolliver v. Jordan · No. 7:19-cv-11823
- Philip Halpern
- July 17, 2020
Background
Eric Tolliver, who is incarcerated at Sing Sing Correctional Facility and proceeding without a lawyer, brought an action under 42 U.S.C. § 1983. He alleges that the defendants transferred him to a new facility in retaliation for filing grievances. The defendants include Lieutenant Jordan, C.O. Depalo, C.O. E. Bonnell, and officials previously identified as John Doe and Jane Doe defendants.
The Office of the New York State Department of Corrections and Community Supervision identified the Doe defendants in response to an earlier court order. Tolliver's amended complaint names them as Gabriela Vega and Richard Houck.
Service of process
Because Tolliver was allowed to proceed without paying the filing fee, the court stated that he could rely on the court and the U.S. Marshals Service to serve the defendants. The court explained that the usual 90-day service period could not begin in the ordinary way because Tolliver could not serve the summonses and amended complaint until the court reviewed the pleading and ordered that summonses be issued.
The court therefore extended the service deadline until 90 days after the summonses are issued. It stated that, if service is not completed within that period, Tolliver should request an extension of time.
The Clerk of Court was instructed to complete U.S. Marshals Service Process Receipt and Return forms for Gabriela Vega and Richard Houck, issue summonses, and deliver the documents needed for the Marshals Service to serve them. Tolliver was also required to notify the court in writing if his address changes; the court stated that the action may be dismissed if he fails to do so.
Disposition
Judge Philip M. Halpern directed the Clerk to mail Tolliver a copy of the order and to arrange service through the Marshals Service. The court certified under 28 U.S.C. § 1915(a)(3) that any appeal from the order would not be taken in good faith, so Tolliver's permission to appeal without paying fees was denied for that appeal. The order did not decide whether the alleged retaliatory transfer violated federal law.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.