Derti v. Barg
- Vincent Briccetti
- 7:19-cv-10215
- U.S. District Court · Southern District of New York
- 5
In Derti v. Barg, Judge Briccetti extended service time, ordered Marshals to serve Barg, and required Barg to respond to discovery requests.
Neser Derti, Sergeant Barg, the Clerk of Court, and the U.S. Marshals Service; Barg must respond to the specified discovery requests after service.
What happened
In Derti v. Barg, Neser Derti, who is incarcerated and representing himself, sued Sergeant Barg and three other defendants for damages under a federal civil-rights law. The court had allowed Derti to proceed without paying filing fees upfront, and service on Barg failed because he had retired and was no longer at the prison where service was attempted.
The court extended the deadline to serve Barg until November 4, 2020. It directed the Clerk of Court to prepare a summons and service forms using Barg’s new address and send the necessary papers to the U.S. Marshals Service. The court also required Barg to answer specified discovery requests within 120 days after receiving the complaint.
Judge Vincent L. Briccetti ordered the Clerk and Marshals Service to pursue service on Barg and ordered Barg to comply with the discovery requirement. The court also stated that any appeal would not be taken in good faith and denied permission to proceed without prepaying fees for an appeal.
The detailed version
- Derti v. Barg · No. 7:19-cv-10215
- Vincent Briccetti
- Aug. 6, 2020
Background
Neser Derti, who was incarcerated at Elmira Correctional Facility and proceeding without a lawyer, brought a damages action under 42 U.S.C. § 1983 against Correctional Sergeant Barg, Disciplinary Hearing Officer Gutwein, Special Housing/Inmate Disciplinary Program Director Venettozzi, and Acting State Correctional Commissioner Annucci. The court had previously allowed Derti to proceed without prepaying filing fees and had directed service of the complaint.
Counsel for Gutwein, Venettozzi, and Annucci informed the court that service on Barg had been attempted but failed at Green Haven Correctional Facility because Barg had retired from the Department of Corrections and Community Supervision. Counsel supplied another address for service.
Service on Barg
Because Derti was allowed to proceed without prepaying fees, the court explained that he could rely on the court and the U.S. Marshals Service to serve the defendants. The court extended the time to serve Barg until November 4, 2020. It stated that, if Barg was not served by then, Derti should request another extension of time.
The court directed the Clerk of Court to complete a U.S. Marshals Service Process Receipt and Return form using the address supplied by counsel, issue a summons for Barg, and deliver the necessary paperwork to the Marshals Service so it could attempt service.
Discovery requirement
The court ruled that Local Civil Rule 33.2 applied. That rule requires defendants in certain prisoner cases to respond to specified, court-ordered interrogatories and requests for documents. The court ordered Barg to serve responses within 120 days after service of the complaint and required him to quote each discovery request verbatim in his response.
Disposition
The court directed the Clerk and the U.S. Marshals Service to take the steps necessary to serve Barg and directed Barg to comply with Local Civil Rule 33.2 within 120 days after service. 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. This amended order addressed service, discovery, and appeal-fee status; it did not decide the underlying claims.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.