McGowan v. Schuck, Case # 12-CV-6557-FPG

• Court: U.S. District Court — Western District of New York
• Writing for the Court: HON. FRANK P. GERACI, JR. Chief Judge United States District Court
• Decision Date: 22 July 2016
• Docket Number: Case # 12-CV-6557-FPG
• Citation: McGowan v. Schuck, Case # 12-CV-6557-FPG (W.D. N.Y. Jul 22, 2016)
• Parties: JOSEPH MCGOWAN Plaintiff, v. JOHN A. SCHUCK, et al., Defendants.

JOSEPH MCGOWAN Plaintiff, v. JOHN A. SCHUCK, et al., Defendants.

Case # 12-CV-6557-FPG

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

July 22, 2016

DECISION AND ORDER

This is an action filed under 42 U.S.C. § 1983 by Joseph McGowan, who alleges that while he was an inmate at Attica Correctional Facility ("Attica") in 2009 and again in 2011, various Attica officials violated his constitutional rights. ECF No. 4. At present, two of the sixteen officials named in the Amended Complaint have been dismissed by the Court in a Screening Order pursuant to 28 U.S.C. § 1915.¹ ECF No. 5. Thirteen of the remaining fourteen defendants have been served with the summons and Amended Complaint. ECF Nos. 6, 7. That leaves one defendant, Matthew Rademacher, who has not yet been served. The purpose of this Order is to address this outstanding service issue.

The docket reflects that in June 2014, McGowan attempted to serve all of the fourteen defendants, including Rademacher, who remain in the case. McGowan is proceeding in forma pauperis, so he was entitled to rely on the U.S. Marshals to actually carry out this service. The U.S. Marshals were not able to serve Rademacher, however, because, at the time of attempted

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service, he was either suspended or no longer employed as a corrections officer at Attica. ECF No. 15.

Accordingly, shortly thereafter, the Court ordered New York State Assistant Attorney General Gary Levine, who appeared as counsel for the other defendants in this case, to provide a suitable address for Rademacher. ECF No. 16. Levine has since provided the Court with the name and address of an agent who will accept service on Rademacher's behalf. ECF No. 17. Thus, the Clerk of Court is now directed to cause the U.S. Marshals to serve Rademacher through his agent at the agent's address of record. Notably, given that McGowan attempted to serve Rademacher within the appropriate time frame after the Court screened his Amended Complaint,² the Court finds good cause here to extend the time for service on Rademacher.

In short, the time in which Rademacher may be served is hereby extended for 60 days so that the Clerk of Court can cause the U.S. Marshals to serve Rademacher's agent for service at his address of record.

IT IS SO ORDERED.

DATED: July 22, 2016

Rochester, New York

/s/_________

HON. FRANK P. GERACI, JR.

Chief Judge

United States District Court

1. McGowan is proceeding in forma pauperis, and thus the Court must dismiss defendants from the case at any time if it determines that the Amended Complaint fails to state a claim against them. See 28 U.S.C. § 1915(e)(2)(B)(ii). Accordingly, the Court has previously dismissed Defendants Chappius and Noeth from the case. ECF No. 5.

2. At the time McGowan filed his Amended Complaint, plaintiffs were generally required to serve defendants with the summons and...