         09-1657-pr
         Murray v. Pataki, et al.


                                    UNITED STATES COURT OF APPEALS
                                        FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

     RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W H EN CITING A SUM M ARY ORDER IN A
     DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (W ITH TH E N OTATION “SUM M ARY ORDER”). A PARTY CITING TO A SUM M ARY
     ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


 1               At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2       Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3       on the 24th day of May, two thousand ten.
 4
 5       PRESENT:
 6                   BARRINGTON D. PARKER,
 7                   DEBRA ANN LIVINGSTON,
 8                   DENNY CHIN,
 9                         Circuit Judges.
10       _____________________________________
11
12       JOEL MURRAY,
13
14                                  Plaintiff-Appellant,
15
16                          v.                                                    (09-1657-pr)
17
18       GEORGE E. PATAKI, Governor of New York State, KANG YEON LEE, M.D., DANIEL
19       SENKOWSKI, Superintendent of Clinton Correctional Facility, DR. MELENDEZ, R. LEDUC,
20       Corrections Officer, N. IRWIN, J. TRAVERS, J. FORTH, Corrections Officer, R. GIRDICH,
21       Superintendent at Franklin Correctional Facility, GLENN S. GOORD, Commissioner of N.Y.S.
22       D.O.C.S., RICHARD ROY, Inspector General, T. REIF, Corrections Officer, CNY
23       PSYCHIATRIC CENTER, S. JONES,
24
25                         Defendants-Appellees.*
26       _____________________________________
27


                  *
                      The Clerk of the Court is respectfully directed to amend the official caption as it appears
         above.
 1   FOR PLAINTIFF-APPELLANT:                      Joel Murray, pro se, Romulus, NY
 2
 3   FOR DEFENDANTS-APPELLEES:                     Andrew M. Cuomo, Attorney General of the State
 4                                                 of New York; Barbara D. Underwood, Solicitor
 5                                                 General; Benjamin N. Gutman, Deputy Solicitor
 6                                                 General (Sudarsana Srinivasan, Assistant Solicitor
 7                                                 General; Kate H. Nepyeu, of Counsel), New York,
 8                                                 NY

 9          Appeal from a judgment of the United States District Court for the Northern District of New

10   York (Suddaby, J., Treece, M.J.).

11          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

12   DECREED that the judgment of the district court is AFFIRMED IN PART and VACATED AND

13   REMANDED IN PART.

14          Plaintiff-Appellant Joel Murray appeals pro se from an order of the United States District

15   Court for the Northern District of New York (Suddaby, J.), entered March 29, 2007, dismissing

16   certain of his 42 U.S.C. § 1983 claims against various of the Defendants-Appellees, and from a

17   second order, entered on April 9, 2009, granting summary judgment in favor of Defendants-

18   Appellees on Murray’s remaining claims under 42 U.S.C. §§ 1983 and 1985, and dismissing his

19   claim against Defendant-Appellee Dr. Melendez for failure to timely effect service of process upon

20   her pursuant to Federal Rule of Civil Procedure 4(m). We assume the parties’ familiarity with the

21   underlying facts and procedural history of the case, and with the issues presented on appeal.

22          We review de novo a district court’s dismissal of claims pursuant to Fed. R. Civ. P. 12(b)(6),

23   “construing the complaint liberally, accepting all factual allegations in the complaint as true, and

24   drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d

25   147, 152 (2d Cir. 2002). A complaint must plead “enough facts to state a claim to relief that is



                                                      2
 1   plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will have

 2   facial plausibility “when the plaintiff pleads factual content that allows the court to draw the

 3   reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129

 4   S. Ct. 1937, 1949 (2009). We also review a district court’s grant of summary judgment de novo, and

 5   determine whether there are no genuine issues of material fact and the moving party is entitled to

 6   judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.

 7   2003). While we construe the evidence in the light most favorable to the non-moving party, id.,

 8   “conclusory statements or mere allegations [are] not sufficient to defeat a summary judgment

 9   motion,” Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002).

10          We have undertaken a de novo review of the record and relevant cases and, except as noted

11   below, we affirm the dismissal of Murray’s claims against all defendants for substantially the same

12   reasons set forth in Magistrate Judge Treece’s thorough reports and recommendations of March 5,

13   2007, and March 3, 2009; these reports were adopted by the district court in their entirety.

14          We vacate the district court’s dismissal of Murray’s claim against Dr. Melendez for failure

15   to serve process. We review a district court's dismissal pursuant to Federal Rule of Civil Procedure

16   4(m) for abuse of discretion. Zapata v. City of New York, 502 F.3d 192, 195 (2d Cir. 2007). A

17   district court abuses its discretion if it bases its ruling on an erroneous view of the law or clearly

18   erroneous findings of fact, or its decision “cannot be located within the range of permissible

19   decisions.” Lynch v. City of New York, 589 F.3d 94, 99 (2d Cir. 2009) (quoting Sims v. Blot, 534

20   F.3d 117, 132 (2d Cir. 2008)).

21          Rule 4(m) provides that “[i]f a defendant is not served within 120 days after the complaint

22   is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action


                                                       3
 1   without prejudice against that defendant or order that service be made within a specified time.” Fed.

 2   R. Civ. P. 4(m). If the plaintiff shows “good cause for the failure” to serve, the district court is

 3   required to grant an “appropriate” extension of time in which to serve. Id. District courts also have

 4   discretion to enlarge the 120-day period even in the absence of good cause. See Zapata, 502 F.3d

 5   at 196. A pro se prisoner proceeding in forma pauperis, such as Murray, is “entitled to rely on

 6   service by the U.S. Marshals.” Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir. 1986). As

 7   long as the pro se prisoner provides the information necessary to identify the defendant, the

 8   Marshals’ failure to effect service automatically constitutes “good cause” for an extension of time

 9   within the meaning of Rule 4(m). See, e.g., id.; see also Moore v. Jackson, 123 F.3d 1082, 1085-86

10   (8th Cir. 1997); Byrd v. Stone, 94 F.3d 217, 220 (6th Cir. 1996); Dumaguin v. Sec’y of Health &

11   Human Servs., 28 F.3d 1218, 1221 (D.C. Cir. 1994); Sellers v. United States, 902 F.2d 598, 602 (7th

12   Cir. 1990); Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). A pro se prisoner proceeding in

13   forma pauperis is only required to provide the information necessary to identify the defendant, see,

14   e.g., Sellers, 902 F.2d at 602, and it is “unreasonable to expect incarcerated and unrepresented

15   prisoner-litigants to provide the current addresses of prison-guard defendants who no longer work

16   at the prison,” Richardson v. Johnson, 598 F.3d 734, 739-40 (11th Cir. 2010).

17          Here, albeit after receiving a number of extensions of time within which to serve Melendez,

18   Murray provided information that was sufficient to identify Dr. Melendez by full name and as an

19   employee formerly assigned to Clinton Correctional Facility. See Doc. 103, Murray v. Pataki, 9:03-

20   CV-1263 (N.D.N.Y. Apr. 13, 2007) (letter from Murray to the district court styled “Notification of

21   Defendant”). This was sufficient to satisfy Murray’s burden to provide sufficient information for

22   the Marshals to identify the defendant. Although the Marshals subsequently failed to serve Dr.


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 1   Melendez at the Clinton facility on March 11, 2008, id. Doc. 134, they were clearly able to identify

 2   her from the information proffered by Murray, and service was unsuccessful merely because Dr.

 3   Melendez apparently no longer worked at Clinton. See id. As Murray had satisfied his burden, it

 4   was an abuse of discretion for the district court to require him to provide additional information

 5   regarding Dr. Melendez, and to dismiss Murray’s claims against her pursuant to Rule 4(m) for failure

 6   to serve process upon her. District courts have a responsibility to assist pro se plaintiffs in their

 7   efforts to serve process on defendants. See Valentin v. Dinkins, 121 F.3d 72, 75-76 (2d Cir. 1997)

 8   (recognizing district court’s obligation to allow pro se plaintiff limited discovery to identify

 9   defendant for service of process). With the information that Murray provided, the district court here

10   could have ordered the other defendants to contact Dr. Melendez to see if she would accept service

11   or to provide the Marshals with Dr. Melendez’s last known address.

12          For the foregoing reasons, the judgment of the district court dismissing the claims against Dr.

13   Melendez for failure to serve process is VACATED, and we REMAND to the district court for

14   further proceedings in accordance with this decision. The judgment is AFFIRMED in all other

15   respects.

16

17                                                 FOR THE COURT:
18                                                 Catherine O’Hagan Wolfe, Clerk
19
20




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