McGrail v. The People of the State of New York
DECISION AND ORDER: ORDERED, that the Report-Recommendation of Magistrate Judge Randolph F. Treece filed November 14, 2011 (Dkt. No. 30 ) is ACCEPTED in its entirety for the reasons state therein. ORDERED, that McGrail's petition for writ of h abeas corpus is denied and that because the Court finds Petitioner has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. §2253(c)(2), no certificate of appealability will be issued with resp ect to any of Petitioner's claims. Signed by Chief Judge Gary L. Sharpe on 1/24/12. (Attachments: # 1 Report-Recommendation and Order, # 2 Decision and Order dated 12/28/11) (served on petitioner at his last known address by regular mail)(alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
SUPERINTENDENT, Collins Corr.
FOR THE PETITIONER:
Petitioner, Pro Se
Last Known Address:
Mohawk Correctional Facility
P.O. Box 8451
Rome, New York 13440
FOR THE RESPONDENT:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
New York, New York 10271
Gary L. Sharpe
THOMAS B. LITSKY, ESQ.
DECISION AND ORDER
The court cannot locate pro se petitioner, Richard McGrail.
Accordingly, it considers sua sponte McGrail’s noncompliance with this
District’s Local Rules by failing to notify the court of his current address
and by not prosecuting his action.
On January 30, 2008, Richard McGrail filed a petition for a writ of
habeas corpus with the Western District of New York and the case was
transferred to the Northern District of New York under seal. See Dkt. No.
1. On March 28, 2008 an order was issued granting the petitioner’s in
forma pauperis application. At that time, he was advised of his obligation
to adhere to the Federal and Local Rules even though he was a pro se
litigant. See Dkt. No. 5. However, the petitioner has not complied with the
portion of this order in regards to promptly notifying the Clerk’s Office and
counsel of any change in his address. This district has expended
considerable effort in order to familiarize pro se litigants with those Rules
by reminding them of their obligations in various documents and orders
mailed to them, and by preparing a Pro Se Handbook that is easily
accessible. See http://www.nynd.uscourts.gov. In fact, copies of the
Handbook have been provided to all prison libraries in the Northern
In relevant part, Local Rule (“L.R.”) 10.1(b) provides:
All ... pro se litigants must immediately notify the court of
any change of address. The notice of change of address is
to be filed with the clerk of the court and served on all other
parties to the action. The notice must identify each and every
action for which the notice shall apply.... (emphasis in original).
In turn, L.R. 41.2(b) provides that the “[f]ailure to notify the Court of a
change of address in accordance with L.R. 10.1(b) may result in the
dismissal of any pending action.”
In fact, while this litigation has been pending, McGrail has
acknowledged this obligation on two occasions by filing a notice of change
of address. See Dkt. No. 9 and 28.
L.R. 41.2(b) mirrors Rule 41(b) of the Federal Rules of Civil
Procedure, which affords the court discretionary authority to dismiss an
action because of the failure to prosecute or to comply with any order of
the court. Link v. Wabash R.R. County Indep. Sch. Dist., 370 U.S. 626
(1962); see also, Lyell Theater Corp. v. Loews Corp., 628 F. 2d 37 (2d Cir.
On November 14, 2011, the court issued a ReportRecommendation recommending that the petition for a writ of habeas be
denied. That because the Court finds Petitioner has not made a
substantial showing of the denial of a constitutional right pursuant to 28
U.S.C. 2253(c)(2), no certificate of appealability should issue with respect
to any of Petitioner’s claims. See Dkt. No. 30. On November 28, 2011,
the court ascertained from DOCCS Inmate Locator that the petitioner was
transferred to Mohawk Correctional Facility. A copy of the ReportRecommendation was sentenced to the petitioner at his new address. On
December 7, 2011, the court further ascertained from DOCCS Inmate
Locator that the petitioner was released on parole.
On December 28, 2011, the Court issued an order directing McGrail
to notify the court within fourteen days of his current address and/or verify
that his mailing address as listed in the caption of this order. See Dkt. No.
31. The court warned McGrail that his failure to comply with the order
could result in dismissal for failure to comply with L.R. 10.1(b) and 41.2(b).
A copy of the order was sent to the last known address of the petitioner.
On January 3, 2012, McGrail’s copy of the order was marked return
to sender - Left No Forwarding Address, Paroled 12/7/11. See Dkt. No.
For the orderly disposition of cases, it is essential that litigants honor
their continuing obligation to keep the court informed of address changes.
Michaud v. Williams, 98cv1141,1999 WL 33504430, at *1 (N.D.N.Y. Nov.
5, 1999) (citing Fenza v. Conklin, 177 F.R.D. 126 (N.D.N.Y. 1998) (Pooler,
then D.J.). As Judge Pooler has observed:
It is neither feasible nor legally required that the
clerks of the district courts undertake independently to
maintain current addresses on all parties to pending
actions. It is incumbent upon litigants to inform the clerk of
address changes, for it is manifest that communications
between the clerk and the parties of their counsel will be
conducted principally by mail. In addition to keeping the
clerk informed of any change of address, parties are
obliged to make timely status inquiries. Address changes
normally would be reflected by those inquiries if made in
Dansby v. Albany County Corr. Staff, 95cv1525, 1996 WL 172699, *1
(N.D.N.Y. Ap. 10, 1996) (citations omitted)).
As a matter of course, courts in this district have dismissed actions
when litigants have failed to abide by either the Local Rules or orders
related to address changes, and have subsequently failed to prosecute
their actions. See Williams v. Faulkner, 95cv741, 1998 WL 278288
(N.D.N.Y. May 20, 1998); Dansby, 1996 WL 172699, at, *1; Fenza,
177 F.R.D. at 126; cf. Michaud, 1999 WL 33504430, at *1.
McGrail’s failure to provide this court with a change of address
warrants dismissal. Rule 41(b) of the Federal Rules of Civil Procedure
allows a court to dismiss an action for failure to prosecute.
The above-captioned matter comes to this court following a ReportRecommendation by Magistrate Judge Randolph F. Treece, duly filed
November 14, 2011. Following ten days from the service thereof, the
Clerk has sent the file, including any and all objections filed by the parties
No objections having been filed, and the court having reviewed the
Magistrate Judge’s Report-Recommendation for clear error, it is hereby
ORDERED, that the Report-Recommendation of Magistrate Judge
Randolph F. Treece filed November 14, 2011 (Dkt. No. 30) is ACCEPTED
in its entirety for the reasons state therein, and it is further
ORDERED that McGrail’s petition for writ of habeas corpus is denied
and that because the Court finds Petitioner has not made a “substantial
showing of the denial of a constitutional right” pursuant to 28 U.S.C. §
2253(c)(2), no certificate of appealability will be issued with respect to any
of Petitioner’s claims, See 28 U.S.C. § 2253(c)(2) (“A certificate of
appealability may issue....only if the applicant has made a substantial
showing of the denial of a constitutional right.”); see also Lucidore v. New
York State Div. of Parole, 209 F.3d 107,112 (2d Cir. 2000), cert. denied
531 U.S.873 (2000) for the reasons articulated in the ReportRecommendation and Order and for failure to notify the court of his
current address, failure to prosecute and for failure to comply with this
court’s December 28, 2011 order, and it is further
ORDERED that the Clerk of the Court serve copies of this Order to
the parties at the addresses listed in the caption in accordance with the
local rules; and it is further
ORDERED that the Clerk serve petitioner at his last known address.
January 24, 2012
Albany, New York
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