Rivera v. Annucci
- Philip Halpern
- 7:19-cv-10425
- U.S. District Court · Southern District of New York
- 4
In Rivera v. Annucci, Judge Halpern ordered Marshals service for Captain Norton, extended the service deadline, and denied fee-waived status for an appeal.
Albert Rivera, Captain Norton, the Clerk of Court, and the U.S. Marshals Service.
What happened
Albert Rivera, who is incarcerated and proceeding without a lawyer or prepaying filing fees, sued officials under a federal civil-rights law. This supplemental order addressed service of the lawsuit on a newly added defendant, Captain Norton.
Rivera initially sued several Green Haven officials and later amended his complaint. He replaced an unidentified correction officer with Jhandry Zevallos and then filed a second amended complaint that added Captain Norton. The second amended complaint did not list Anthony Annucci in its caption.
Judge Philip M. Halpern directed the Clerk to prepare the paperwork and summons so the U.S. Marshals Service could serve Captain Norton. The court extended Rivera’s service deadline until 90 days after the summons is issued and denied fee-waived status for any appeal from the order.
The detailed version
- Rivera v. Annucci · No. 7:19-cv-10425
- Philip Halpern
- Nov. 30, 2020
Background
Albert Rivera, who was incarcerated at Green Haven Correctional Facility, brought this civil-rights action under 42 U.S.C. § 1983. He proceeded without a lawyer and was allowed to proceed without prepaying court fees. The original complaint named Anthony Annucci, M. Royce, A. Russo, T. Ott, and an unidentified correction officer.
Judge Román previously directed service on the named defendants and instructed the New York State Office of the Attorney General to identify the unidentified officer. The office identified that officer as Jhandry Zevallos. Rivera then amended his complaint to substitute Zevallos for the unidentified officer. After receiving permission to amend again, Rivera filed a second amended complaint on October 5, 2020, adding Captain Norton. The court noted that Annucci was not included in the second amended complaint’s caption.
Service ruling
Because Rivera was proceeding without prepaying fees, he was entitled to rely on the court and the U.S. Marshals Service to serve the summons and complaint. The usual rule generally requires service within 90 days after filing, but the court explained that Rivera could not serve the second amended complaint until the court reviewed it and ordered that a summons be issued.
The court therefore extended the service deadline until 90 days after the summons is issued. It stated that, if service is not completed within that period, Rivera should request an extension of time.
The Clerk was directed to complete a U.S. Marshals Service Process Receipt and Return form with Captain Norton’s address, issue a summons, and provide the Marshals Service with the documents needed to serve Norton. The Clerk was also directed to mail Rivera a copy of the order.
Other ruling and effect
The court instructed Rivera to notify the court in writing if his address changes and warned that the action could be dismissed if he failed to do so. The court also certified that an appeal would not be taken in good faith and denied Rivera’s fee-waived status for purposes of an appeal. The order addressed service and appeal-fee status; it did not decide the merits of Rivera’s civil-rights claims.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.