Loving v. Superintendent

Background

Franklin Loving, who is incarcerated at Bare Hill Correctional Facility, filed this pro se damages action alleging that the defendants violated his federal constitutional rights. He sued the Superintendent of Downstate Correctional Facility and an unidentified physician employed there. The court had previously granted Loving permission to proceed without paying court fees in advance.

Service on the Superintendent

Because Loving was allowed to proceed without paying fees in advance, the court explained that he could rely on the court and the U.S. Marshals Service to serve the defendants. Although the normal service period is 90 days after filing, the court found that Loving could not serve the Superintendent until the court reviewed the amended complaint and ordered a summons. The court therefore extended the service period until 90 days after a summons is issued. It stated that Loving should request more time if the amended complaint is not served within that period.

The court directed the Clerk of Court to issue a summons for the Superintendent, complete a U.S. Marshals Service process form with the service address, and send the necessary documents to the Marshals Service. Loving must notify the court in writing if his address changes, and the court stated that the action may be dismissed if he fails to do so.

Identifying the Doe Defendant

The court stated that a person proceeding without a lawyer is entitled to the district court’s assistance in identifying an unnamed defendant. It found that Loving’s amended complaint provided enough information for the New York State Department of Corrections and Community Supervision to identify the physician who conducted a medical screening and physical examination of him when he entered Downstate Correctional Facility on a date in January 2019.

The court ordered the New York Attorney General, acting as counsel and agent for the Department, to determine the physician’s identity and service address and provide that information to Loving and the court within 60 days. Within 30 days after receiving the information, Loving must file a second amended complaint naming the physician. That complaint will replace, rather than supplement, the earlier complaints. The court will screen the second amended complaint and, if necessary, issue further service instructions.

Disposition

The court directed the Clerk of Court to mail Loving the order and an information package, issue and arrange service of the summons and amended complaint on the Superintendent, and send the order and amended complaint to the New York Attorney General. The court certified that an appeal would not be taken in good faith and denied permission to proceed without paying fees for purposes of an appeal. The order addressed service and identification of a defendant; it did not decide whether the alleged constitutional violations occurred.