Ware v. Gunset

Background

Khyrel Ware, who is incarcerated at Mid-State Correctional Facility and is proceeding without a lawyer, brought this action under 42 U.S.C. § 1983. He alleges that the defendants assaulted him. The defendants are identified in the caption as Sgt. Gunset, C.O. Colombo, and two C.O. John Does. The court had previously granted Ware permission to proceed without prepaying filing fees.

Service on Named Defendants

Because Ware was permitted to proceed without prepaying fees, the court explained that he could rely on the court and the U.S. Marshals Service to serve the defendants. The Clerk of Court was directed to issue summonses, complete the U.S. Marshals Service process forms with the addresses for Sergeant Gunset and Officer Colombo, and deliver the necessary paperwork to the Marshals Service.

The court stated that service must be completed within 90 days after the summonses are issued. If service is not completed within that period, Ware should request an extension of time. Ware must also notify the court in writing if his address changes; the court stated that it may dismiss the action if he fails to do so.

Identification of John Doe Defendants

Under the rule allowing a self-represented litigant help identifying an unnamed defendant, the court found that the complaint provided enough information for the New York State Department of Corrections and Community Supervision to identify the two John Doe correction officers. The court ordered the New York State Attorney General, identified as the attorney and agent for that department, to determine each officer’s identity, badge number, and service address within 60 days of the order.

Within 30 days after receiving that information, Ware must file an amended complaint naming the two John Doe defendants. The amended complaint will replace, rather than supplement, the original complaint. The court will screen the amended complaint and, if necessary, issue further service instructions.

Other Requirements and Disposition

The court held that Local Civil Rule 33.2 applies. Under that rule, the defendants must respond to the specified prisoner-case interrogatories and document requests within 120 days after service of the complaint and must quote each request verbatim in their responses.

Judge Nelson S. Roman ordered the Clerk of Court to issue summonses and arrange service on Sergeant Gunset and Officer Colombo, directed the New York State Attorney General to identify the two John Doe defendants, and set related filing and discovery deadlines. This order addressed service and case administration; it did not decide whether Ware’s assault allegations are legally or factually valid.