McGrail v. The People of the State of New York

Filing 33

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

RICHARD MCGRAIL,
Petitioner,
9:08-cv-111
(GLS/RFT)

v.
SUPERINTENDENT, Collins Corr.
Facility,
Respondent.

APPEARANCES:

OF COUNSEL:

FOR THE PETITIONER:
RICHARD MCGRAIL
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
120 Broadway
New York, New York 10271
Gary L. Sharpe
District Court Judge

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 habeas corpus petition
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 plaintiff’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. 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 District.
In relevant part, Local Rule (“L.R.”) 10.1(b) provides:
All ... pro se litigants must immediately notify the court of
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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 notices 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.
1982).
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 wit respect
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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.
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
writing.
Dansby v. Albany County Corr. Staff, 95cv1525, 1996 WL 172699, at *1
(N.D.N.Y. Ap. 10, 1996) (citations omitted)).

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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.
Although the court concludes that it would be an appropriate
exercise of discretion to dismiss McGrail’s action at this juncture for failure
to notify the court of his address change or to prosecute his action, it
nonetheless affords him an additional fourteen days to comply.
According, it is hereby
ORDERED that McGrail be granted FOURTEEN (14) days from the
date of the filing of this order to submit his current address to the court, or
verify that his mailing address is as listed in the caption of this order, and it
is further
ORDERED that if McGrail fails to comply, the court will sua sponte
dismiss this action for failure to notify the court of his address change, for
failure to prosecute and for the reasons articulated in the ReportRecommendation; and it is further

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ORDERED that the Clerk serve copies of this Order on the parties at the
addresses listed in the caption.
SO ORDERED.
Dated:

December 28, 2011
Albany, New York

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