Anekwe v. Bernstein

Background

Peter Anekwe, who is incarcerated at Fishkill Correctional Facility and is proceeding without a lawyer, brought this action against Frederick Bernstein, identified as the Medical Director of Green Haven Correctional Facility, and Albert Acrish, identified as a medical provider. Anekwe alleges that the defendants violated his constitutional rights while he was incarcerated at Green Haven. The court had previously allowed Anekwe to proceed without paying filing fees. Acrish was served, but Bernstein was not.

The court had previously extended Anekwe’s time to serve the complaint by 90 days because summonses could not be issued until the court reviewed the complaint. The summonses were issued on September 12, 2022. That 90-day period expired without service on Bernstein, and Anekwe had not requested another extension. On January 13, 2023, the New York State Attorney General provided an address where Bernstein could be served.

Ruling

The court extended Anekwe’s time to serve Bernstein by another 90 days from the date of the order. It concluded that, because Anekwe was proceeding without paying filing fees and had provided information needed to identify Bernstein, the U.S. Marshals Service’s failure to complete service constituted good cause for an extension under the service rule. The court instructed the Clerk of Court to complete a U.S. Marshals Service Process Receipt and Return form, issue a summons, and provide the necessary paperwork to the Marshals Service.

Judge Loretta A. Preska warned Anekwe that he must monitor service and request another extension if service was not completed within the new 90-day period. The order stated that failing to do so could result in Bernstein’s dismissal as a defendant. It also required Anekwe to notify the court in writing if his address changed and stated that the action could be dismissed if he failed to do so. The order did not decide the merits of Anekwe’s constitutional allegations.