Ellerbe v. Nassau County Correctional Facility et al

Filing 22

ORDER: SO ORDERED that plaintiff is directed to file an affidavit on or before November 4, 2013 providing the Court with a new address and telephone number at which he can be contacted during the course of this litigation. PLAINTIFF IS ADVISED THAT HIS FAILURE TO COMPLY WITH THIS ORDER, OR TO TAKE ANY STEPS TO PROSECUTE THIS ACTION, WILL RESULT IN THIS ACTION BEING DISMISSED WITH PREJUDICE PURSUANT TO RULES 37(b)(2)(A)(v) AND 4l(b) OF THE FEDERAL RULES OF CIVIL PROCEDURE. Plaintiffs time to fil e an amended complaint in accordance with the May 15, 2013 order is extended until November 4, 2013. Should plaintiff file an affidavit providing the Court with new contact information in accordance with this Order, plaintiff is advised that his clai ms against Sposato, the Warden and the Superintendent, as well as his claims as constructed to be against the County, will nonetheless be dismissed with prejudice, and judgment will be entered in favor of those defts, if he fails to file an amended complaint in accordance with the May 15, 2013 order on or before November 4. 2013. The Clerk of the Court is directed to serve notice of entry of this order upon all parties in accordance with Rule S(b) of the Federal Rules of Civil Procedure. The Co urt certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 10/2/2013. (Florio, Lisa)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TA'MARR ELLERBE, #12003549,
Plaintiff,

ORDER
!3-CV-00797(S1F)(GRB)

-against-

NASSAU COUNTY CORRECTIONAL FACILITY,
SHERIFF MICHAEL SPOSATO, WARDEN JOHN
DOE, SUPERINTENDENT JOHN DOE, CORPORAL
GIGGOGLEY, OFFICER GROSS, BADGE #573,
OFFICER DONALD, BADGE #2910 and OFFICER
INCAMMICIA, BADGE# 2723,
Defendants.

FILED

IN ClERK'S OF~ ICE
US DISTRICT C•"J•)~ · £ -:: 111 y

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lONG It;_,. .......... , flCE

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FEUERSTEIN, District Judge:
On February 6, 20 13, incarcerated pro se plaintiffTa 'Marr Ellerbe ("plaintiff') filed a

civil rights complaint in this Court pursuant to 42 U.S.C. § 1983 ("Section 1983'') against
defendants Nassau County Corredional Facility ("NCCC''); Sheriff Michael Sposato

("Sposato~);

Warden "John Doe" ("Warden"); Superintendent "John Doe" ("Superintendent"); Corporal
Giggogley ("Cpl. Giggogley"); Officer Gross, Badge# 573 ("Officer Gross''); Officer Donald,
Badge# 2910 ("Officer Donald"); and Officer Incanunicia, Badge# 2723 ("Officer Incarnrnicia'')
(collectively, "defendants"), accompanied by an application to proceed in forma pauperis. By
order dated May I 5, 20 13: (I) plaintiff's application to proceed in forma pauperis was granted;
(2) plaintiff's claims against the NCCC (a) were dismissed with prejudice pursuant to 28 U.S.C.

§§ 1915(e)(2)(8)(ii) and 1915A(b){l) for failure to state a claim for relief, and (b) were construed
to be claims against the County of Nassau (''the County''); (3) plaintiff's claims against Sposato,
the Warden and the Superintendent, as well as his claims as construed to be against the County,

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were dismissed without prejudice pursuant to 28 U.S.C. §§ 19!5(e}{2)(B)(ii) and 1915A(b)(l) for
failure to state a claim for relief, provided that plaintiff file an amended complaint re-pleading his
claims against those defendants on or before June 18, 2013; and (4) plaintiff was advised that if
he failed to file an amended complaint in accordance with that Order, his claims against Sposato,
the Warden and the Superintendent, as well as his claims as construed to be against the County,
would be deemed dismissed with prejudice and judgment would be entered in favor of those
defendants. On May 22, 2013, the Clerk of the Court served notice of entry of the May 15, 2013
order upon plaintiff by mailing a copy thereof to him at his address ofrecord, i.e., the NCCC,
located at 100 Carman Avenue, East Meadow, New York 11554. That mailing was returned to

the Court as undeliverable on June 13, 2013, with the notation that plaintiff has been discharged.
(Doc. No. 12). All subsequent mail sent by the Court to plaintiff at his address of record,
including a scheduling order issued by the Honorable Gary R. Brown. United States Magistrate
Judge, on July 29, 2013 and a notice that a pretrial conference has been scheduled before me on
May 6, 2014, has likewise been retumed to the Court as undeliverable.

~Doc.

Nos. 20 and

2\). Since the filing of this action, plaintiff has not taken any steps to prosecute it, or to
otherwise communicate with the Court; has not filed a notice of change of address in this case;
and has not apprised the Court of his current whereabouts or contact information.
''The duty to inform the Court and defendants of any change of address is 'an obligation
that rests with all prose plaintiffs."' Alomar v. Recard, No. 07-CV-5654, 2010 WL 451047, at •
2 (S.D.N.Y. Feb. 9, 2010) (quotingHand1jn v. Garyey, No. 91 Civ. 6777, 1996 WL 673823, at •

5 (S.D.N.Y. Nov. 20, 1996));

=

.il!J:Q Hayes v. Shield. No. 11 Civ. 3714, 2012 WL 3114843, at •

I (S.D.N.Y. July 5, 2012),mw:!. and recommendation adopted Qy 2012 WL 3115798 (S.D.N.Y.
Aug. 1, 20!2); Ackridge v. Maning, No. 09 Civ. 10400, 2011 WL 5865265, at* 3 (S.D.N.Y.
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Nov. 22, 2011) ("[W]hen a party changes addresses, it is his obligation to notifY the court of his
new address."). This action cannot proceed at all unless the Court and defense counsel are able

to contact plaintiff to, inter alia, arrange conferences; obtain discovery; serve motions and orders;

and schedule trial. ~.~Grace v. New York, No. 10 Civ. 3853, 2010 WL 3489574, at • 2
(S.D.N. Y. Sept. 7, 2QIO),mlQtl &J..!! recommendation adopted Jrt 2010 WL 4026060 (S.D.N.Y.
Oct. 14, 2010) (finding that the cw;e "cannot proceed without [the prose plaintiffs] participation,
[because] he has provided no method by which the Court can inform him of his obligations in
th[ e] case or its outcome."); United States ex rel. Roundtree v. Health and Hospitals Police Dept.
ofNew York. No. 06 Civ. 212,2007 WL 1428428, at • 1, 2 (S.D.N.Y. May 14, 2007) (holding
that "defendants are at a severe disadvantage in not knowing the address of the prose litigant
who has brought suit against them."); Coleman v. Doe, No. 05-cv-5849, 2006 WL 2357846, at •
3 (E.D.N.Y. Aug. 14, 2006) ("To require defendants to move forward would be impossible
without plaintifrs participation.~) "When a prose litigant fails to provide the Court with notice
of a change of address, the Court may dismiss the litigant's claims." Bernard v. RomeiL No. II
cv 6346, 2012 WL 6594622, at • 2 (E.D.N.Y. Oct. 15, 2012),~ and recommendation

adopted J2x 2012 WL 6594525 (E.D.N.Y. Dec. 18, 2012); see .!!1m~. 2010 WL 3489574, at •
2 (''[D]ismissal for failure to prosecute is appropriate where a plaintiff effectively disappears by
failing to provide a current address at which he or she can be reached.")
Accordingly, plaintiff is directed to file an affidavit on or before November 4, 2013
providing the Court with a new address and telephone number at which he can be contacted
during the course of this litigation.

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PLAINTIFF IS ADVISED THAT HIS FAILURE TO COMPL V WITH THIS
ORDER, OR TO TAKE ANY STEPS TO PROSECUTE TillS ACTION, WILL RESULT
IN THIS ACTION BEING DISMISSED WITH PREJUDICE PURSUANT TO RULES

37(b)(2)(A)(v) AND 4l(b) OF THE FEDERAL RULES OF CIVIL PROCEDURE.

Plaintiffs time to file an amended complaint in accordance with the May 15, 2013 order
is extended until November 4, 2013. Should plaintiff file an affidavit providing the Court with
new contact infonnation in ae<:ordance with this Order, plaintiiT is advised that his claims

against Sposato, the Warden and the Superintendent, as well as his claims as
be against the County, will nonetbeleu be disiDiS.'Ied with

prejndi~e,

eoJUtn~ed

to

and judgment will be

entered in favor oltb011e defendanfll, if be fails to file an amended complaint in accordance

with the May 15, 2013 order on or before Noyember 4. 2013.

Pursuant to Rule 77(dX1) of the Federal Rules of Civil Procedure, the Clerk of the Court
is directed to serve notice of entry of this order upon all parties in accordance with Rule S(b) of
the Federal Rules of Civil Procedure.

The Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal from this order
would not be taken in good faith and therefore in forma pauperis status is denied for purpose of
an

appeal.~

Coppedge v. United State:!. 369 U.S. 438, 444-45 (1962).

SO ORDERED.

s/ Sandra J. Feuerstein

st"idra J. FeuJIJtein
United States District Judge
Dated: Centtal Islip, New York
October 2, 20 13
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