Rodriguez v. Burnett
- Philip Halpern
- 7:22-cv-10056
- U.S. District Court · Southern District of New York
- 4
In Rodriguez v. Burnett, Judge Halpern ordered a summons and Marshals Service paperwork for Defendant Franco and extended the service deadline.
Ralph Rodriguez, Defendant Johnathon Franco, the Clerk of Court, and the U.S. Marshals Service.
What happened
In Rodriguez v. Burnett, Ralph Rodriguez, who is incarcerated at Fishkill Correctional Facility and represents himself, alleges that defendants violated his constitutional rights during his incarceration. The case proceeds under a federal civil-rights law, and Rodriguez had permission to proceed without paying filing fees.
Service was attempted on Defendant Johnathon Franco at the wrong correctional facility because of errors in the service paperwork. The court therefore directed the Clerk to issue Franco a summons, prepare the required service form, and send the necessary documents to the U.S. Marshals Service. The court extended the service deadline to 90 days after the summons is issued.
Judge Philip M. Halpern also required Rodriguez to notify the court if his address changes and denied permission to proceed without paying fees for any appeal from this order, stating that an appeal would not be taken in good faith.
The detailed version
- Rodriguez v. Burnett · No. 7:22-cv-10056
- Philip Halpern
- Sept. 12, 2023
Background
Ralph Rodriguez, who is incarcerated at Fishkill Correctional Facility and is proceeding without a lawyer, brought this action under 42 U.S.C. § 1983, alleging that defendants violated his constitutional rights during his incarceration at Fishkill. The court had previously directed service for several defendants and had dismissed all claims against New York State, County of Dutchess, Commissioner Annucci, and Governor Hochul.
Service Problem
Defendants informed the court that service had been attempted on Johnathon Franco, Carlton Garrett, Angel Matos, Jean Marc Oge, and Vincent Santiago at the wrong correctional facility because of errors on the U.S. Marshals Service Process Receipts and Return forms. Service was nevertheless deemed completed for Garrett, Matos, Oge, and Santiago as of August 16, 2023. The remaining service issue concerned Franco.
Because Rodriguez had permission to proceed without paying filing fees, he was entitled to rely on the court and the U.S. Marshals Service to serve the defendants. The court instructed the Clerk to complete a service form for Franco, issue a summons, and deliver the summons and other necessary papers to the Marshals Service.
Service Deadline and Other Requirements
The court extended the time for serving Franco until 90 days after the summons is issued. The court explained that Rodriguez could not have served the summons and complaint before the court reviewed the complaint and ordered the summonses issued. If service is not completed within that period, Rodriguez should request an extension of time.
Rodriguez must notify the court in writing if his address changes. The court stated that the action may be dismissed if he fails to provide that notice.
Order
Judge Philip M. Halpern directed the Clerk to mail Rodriguez an information package, issue a summons for Franco, complete the service form with Franco’s address, and provide the required documents to the U.S. Marshals Service. The court also certified that any appeal from the order would not be taken in good faith and denied permission to proceed without paying filing fees for purposes of an appeal.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.