Nicholas v. Metropolitan Correctional Center New York

Background

Malik M. Nicholas, who had previously been detained at the Metropolitan Correctional Center (MCC), filed a claim under the Federal Tort Claims Act (FTCA). He alleges that Correctional Officer A. Samrou failed to protect him, causing him injury. Nicholas is proceeding without a lawyer. The court had previously allowed him to proceed without prepaying filing fees, although the opinion notes that prisoners must still pay the full filing fee over time.

Substitution of Defendant

The court explained that the proper defendant in an FTCA action is the United States. Because Nicholas was representing himself, the Clerk of Court was directed to substitute the United States for MCC as a defendant under Federal Rule of Civil Procedure 21.

Service on the United States

Because Nicholas was allowed to proceed without prepaying fees, he could rely on the court and the U.S. Marshals Service to serve process. The Clerk was instructed to issue a summons for the United States, complete the required U.S. Marshals Service forms, mark the forms for service on the United States, and provide the necessary papers to the Marshals Service. The Clerk was also directed to mail the order and complaint to the United States Attorney’s Office.

The court stated that service must occur within 90 days after the summons is issued. If service is not completed within that period, Nicholas should request an extension. The court explained that this deadline runs from issuance of the summons because a plaintiff proceeding without prepayment of fees could not serve the papers before the court reviewed the complaint and ordered issuance of the summons.

Identifying and Serving A. Samrou

The court determined that the complaint provided enough information for the United States Attorney’s Office to identify A. Samrou, who had been employed at MCC. Relying on the rule that a self-represented litigant is entitled to the court’s assistance in identifying a defendant, the court ordered the United States Attorney’s Office to determine A. Samrou’s identity and service address within 60 days of the order. Within 30 days after receiving that information, the court will issue an order directing the Clerk to complete the service forms and provide the documents to the Marshals Service.

Disposition

The order directs substitution of the United States for MCC and directs the Clerk and Marshals Service to take steps to serve the United States. It also directs the United States Attorney’s Office to identify A. Samrou and provide a service address. The order does not decide the merits of Nicholas’s allegation that A. Samrou failed to protect him. The court certified that an appeal would not be taken in good faith and denied permission to proceed without prepaying fees for purposes of an appeal. Judge J. Paul Oetken signed the order.