Toribio Abreu v. Doe 1

Background

Ramel Argenis Toribio Abreu, who is detained at the Orange County Jail and is proceeding without a lawyer, alleges that Drug Enforcement Administration agents assaulted him during his November 29, 2021 arrest in Yonkers, New York. Because the allegations concern constitutional rights allegedly violated by federal-government employees, the court construed the action as asserting claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, a framework allowing certain lawsuits for constitutional violations by federal officials.

Adding a Defendant

Abreu’s September 13, 2022 amended complaint named Shaun Menton and Richard (RJ) Light in its caption and identified them as defendants. In describing the events, however, the complaint also alleged that “William Kivlehan began to drive irradically [sic] to purposefully further injury my injuries.” Relying on Federal Rule of Civil Procedure 21, which allows a court to add or remove a party on appropriate terms, the court construed the amended complaint as asserting claims against William Kivlehan and directed the Clerk of Court to add him as a defendant.

Service of Process

Chief Judge Laura Taylor Swain had previously granted Abreu permission to proceed without prepaying filing fees. For a plaintiff proceeding this way, the court and the U.S. Marshals Service handle service of process. The court extended the normal service period so that service would be due 90 days after the summonses were issued. It stated that, if service was not completed within that period, Abreu should request an extension.

The court directed the Clerk of Court to prepare a U.S. Marshals Service Process Receipt and Return form for each of Shaun Menton, Richard (RJ) Light, and William Kivlehan, using the Virginia-based addresses provided by the United States Attorneys’ Office. The Clerk was also directed to issue summonses and send the necessary paperwork to the Marshals Service.

Disposition

Judge Kenneth M. Karas ordered the summonses and service paperwork to be provided to the Marshals Service and directed the Clerk to mail Abreu an information package, including the order and an amended complaint form. The court certified under 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore denied permission to appeal without prepaying fees. The order addressed adding a defendant and arranging service; it did not resolve the merits of Abreu’s allegations.