Levine v. Fenstermaker
- Nelson Roman
- 7:23-cv-02543
- U.S. District Court · Southern District of New York
- 6
In Levine v. Fenstermaker, Judge Roman ordered service by United States Marshals for a self-represented plaintiff proceeding without upfront fees, without deciding the claims.
The order affects Richie Foster Levine, who may proceed without prepaying filing fees and will have the United States Marshals Service serve Linda Frances Lee Fenstermaker. It also directs the Clerk of Court to issue the summons and related service documents.
What happened
In Levine v. Fenstermaker, Richie Foster Levine sued Linda Frances Lee Fenstermaker, identified as a Regional Director of New York State’s Division of Human Rights. Levine alleges that Fenstermaker refused to process complaints about hiring bars for people with convictions, violating due process and equal protection rights.
The court noted that Levine had permission to proceed without prepaying filing fees. Because of that status, the court ordered the Clerk to issue a summons and provide the necessary papers to the United States Marshals Service for service on Fenstermaker. The court extended the service deadline to 90 days after the summons is issued.
Judge Nelson S. Roman also ordered the Clerk to mail Levine an information package and a copy of the order. The order requires Levine to notify the court in writing of any address change and states that the action may be dismissed if Levine fails to do so. The court did not decide the merits of Levine’s civil-rights claims.
The detailed version
- Levine v. Fenstermaker · No. 7:23-cv-02543
- Nelson Roman
- Apr. 5, 2023
Background
Richie Foster Levine, who was representing himself, brought a civil-rights action against Linda Frances Lee Fenstermaker in both her individual and official capacities. The opinion identifies Fenstermaker as the Regional Director of the New York State Division of Human Rights. Levine proceeds under the legal doctrine that allows a plaintiff to seek prospective relief against a state official to stop an alleged violation of federal law. He primarily alleges that Fenstermaker violated the Fourteenth Amendment’s due-process and equal-protection protections by refusing to process complaints concerning allegedly discriminatory hiring bars for people with convictions.
The opinion states that Judge Laura Taylor Swain had previously granted Levine permission to proceed without prepaying filing fees.
Service of Process
Because Levine was authorized to proceed without prepaying fees, the court held that he could rely on the court and the United States Marshals Service to serve the summons and complaint. The court explained that the usual rule requires service within 90 days after filing, but Levine could not serve the papers until the court reviewed the complaint and ordered a summons issued. The court therefore extended the service deadline to 90 days after the summons is issued.
The Clerk of Court was instructed to issue a summons for Linda Fenstermaker, complete the United States Marshals Service process forms using the service address provided in the order, and deliver the necessary paperwork to the Marshals Service. The court stated that, if service is not completed within the extended period, Levine should request an additional extension.
Other Instructions and Disposition
The court ordered the Clerk to mail Levine an information package and a copy of the order. Levine must notify the court in writing if his address changes, and the order states that the court may dismiss the action if he fails to do so. The court also mentioned a free legal clinic for people representing themselves, while noting that the clinic is operated by a private organization and is not part of the court.
Judge Nelson S. Roman entered an order directing service of the action through the United States Marshals Service. The order did not decide whether Levine’s due-process or equal-protection claims have merit.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.