Wunner v. Smith
- Vincent Briccetti
- 7:21-cv-01865
- U.S. District Court · Southern District of New York
- 4
In Wunner v. Smith, Judge Briccetti ordered service and discovery procedures for Wunner’s civil-rights lawsuit alleging excessive force.
Jonte Andrew Wunner, the nine named defendants, the Clerk of Court, and the U.S. Marshals Service. The order requires the court and Marshals Service to pursue service and requires the defendants to respond to specified discovery requests.
What happened
Jonte Andrew Wunner, who was incarcerated at Sullivan County Jail and represented himself, sued nine defendants under a federal civil-rights law. He alleged that the defendants used excessive force against him and covered it up. The court had already allowed him to proceed without paying filing fees upfront.
The court directed the Clerk of Court and the U.S. Marshals Service to prepare and serve the complaint and summons on the nine defendants. It extended the service deadline to 90 days after the summons is issued and stated that Wunner must notify the court if his address changes.
Judge Vincent L. Briccetti also ordered the defendants to respond to specified prisoner discovery requests within 120 days after service. This order addressed service and case-management procedures; it did not decide whether Wunner’s excessive-force allegations were proven.
The detailed version
- Wunner v. Smith · No. 7:21-cv-01865
- Vincent Briccetti
- Mar. 19, 2021
Background
Jonte Andrew Wunner, who was incarcerated at Sullivan County Jail, filed this case without a lawyer under 42 U.S.C. § 1983. He alleged that Chief H. Smith, Captain J. Ginty, Lieutenant C. Bini, Sergeant C. Zayas, Sergeant M. Shene, Corporal J. Wilcox, Deputy M. Gorr, Deputy Sawall, and Deputy S. Cunningham used excessive force against him and covered up that conduct. The opinion does not decide the truth of those allegations.
The court had previously granted Wunner permission to proceed without prepaying filing fees. The opinion notes that prisoners still must pay the full filing fee, even when they receive that permission.
Service of Process
Because Wunner was allowed to proceed without prepaying fees, the court stated that he could rely on the court and the U.S. Marshals Service to serve the defendants. The Clerk of Court was directed to complete a U.S. Marshals Service Process Receipt and Return form for each defendant, issue a summons, and provide the Marshals Service with the paperwork needed to make service.
The court extended the usual 90-day service period. It ruled that the deadline would be 90 days after the summons was issued because Wunner could not have served the defendants before the court reviewed the complaint and ordered issuance of the summons. The court stated that, if service was not completed within that period, Wunner should request an extension of time. It also required Wunner to notify the court in writing if his address changed and stated that the action could be dismissed if he failed to do so.
Discovery and Disposition
The court ruled that Local Civil Rule 33.2 applies. Under that rule, the defendants must respond to specified interrogatories and requests for production of documents within 120 days after service of the complaint, and their responses must quote each request verbatim.
Judge Vincent L. Briccetti ordered the Clerk to mail Wunner a copy of the order and an information package, complete the service forms with the defendants’ addresses, and deliver the necessary documents to the Marshals Service. The order also confirmed that Local Civil Rule 33.2 applies. This was an order concerning service and discovery procedures, not a ruling on the merits of the excessive-force or cover-up claims.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.