Herbert v. Lynch
- Nelson Roman
- 7:22-cv-06303
- U.S. District Court · Southern District of New York
- 5
In Herbert v. Lynch, Judge Roman ordered U.S. Marshals service and required discovery responses, while denying IFP status for an appeal.
Jeremiah F. Herbert, the six named defendants, the Clerk of Court, the U.S. Marshals Service, and the defendants’ discovery obligations under Local Civil Rule 33.2.
What happened
In Herbert v. Lynch, Jeremiah F. Herbert, who was detained at Sullivan County Jail and represented himself, sued six jail-related defendants under a federal civil-rights law. He alleged failure to protect, excessive force, and unconstitutional conditions of confinement.
The court directed the Clerk to issue summonses and provide the necessary papers to the U.S. Marshals Service so the defendants could be served. The court also applied Local Civil Rule 33.2, requiring the defendants to respond to specified discovery requests within 120 days. The order did not state that any claim was dismissed or decide whether Herbert’s allegations were true.
Judge Nelson S. Roman ordered service, extended the service period to 90 days after the summonses are issued, and required Herbert to notify the court of any address change. The court also denied permission to proceed without paying fees for an appeal, while leaving Herbert’s previously granted permission to proceed without prepaying the case’s filing fees in place.
The detailed version
- Herbert v. Lynch · No. 7:22-cv-06303
- Nelson Roman
- Sept. 14, 2022
Background
Jeremiah F. Herbert, who was detained at Sullivan County Jail, filed this self-represented action under 42 U.S.C. § 1983. He alleged that Sergeant Charles Lynch, Sergeant Philip Niosi, Corporal Sherola, Warden Harold L. Smith, Sergeant M. Moyer, and Deputy Dilpalma failed to protect him, used excessive force, and subjected him to unconstitutional conditions of confinement.
The court had previously allowed Herbert to proceed without prepaying the filing fee. The opinion explains that self-represented complaints are read liberally, but they still must provide enough factual detail to state a plausible claim. The court also described its obligation to dismiss claims that are frivolous, malicious, fail to state a claim, seek relief from an immune defendant, or fall outside the court’s subject-matter jurisdiction.
Service of Process
Because Herbert was allowed to proceed without prepaying the filing fee, the court directed the Clerk of Court to prepare U.S. Marshals Service process forms, issue summonses, and deliver the necessary papers to the Marshals Service for service on all six defendants. The court stated that Herbert’s time to serve the defendants would run for 90 days after the summonses are issued. If service is not completed within that period, the opinion states that Herbert should request an extension of time.
The court also directed Herbert to notify the court in writing if his address changes and stated that the action may be dismissed if he fails to do so.
Discovery
The court ruled that Local Civil Rule 33.2 applies. That rule requires defendants in certain prisoner cases to respond to specified, court-ordered discovery requests. The defendants must serve responses to the standard interrogatories and document requests within 120 days of the order and must quote each request verbatim in their responses.
Disposition
The order directed the Clerk to issue summonses and arrange for service through the Marshals Service, and it applied Local Civil Rule 33.2 to the action. The court did not dismiss any claim or resolve the merits of Herbert’s allegations. It certified that any appeal from the order would not be taken in good faith and denied permission to proceed without prepaying fees for purposes of an appeal. The order was signed by Judge Nelson S. Roman.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.