Lewis v. Havernack et al
Filing
117
DECISION AND ORDER: ORDERED, the Report-Recommendation of Magistrate Judge David E. Peebles filed February 9, 2015 (Dkt. No. 113 ) is ACCEPTED in its entirety for the reasons state therein. ORDERED that defendant's motion for summary judgmen t (Dkt. No. 96 ) is GRANTED, and that the remaining claim in plaintiff's amended complaint is DISMISSED, and, alternatively, the amended complaint is DISMISSED for Lewis' failure to notify the court of his current address, failure to prose cute, and failure to comply with the court's March 18, 2015 order. 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. ORDERED that the Clerk serve plaintiff at his last known address. Signed by Chief Judge Gary L. Sharpe on 3/30/15. (served on plaintiff by regular and certified mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MARC LEWIS,
Plaintiff,
9:12-cv-31
(GLS/DEP)
v.
ESTATE OF KEVIN SHERIDAN
Defendant.
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
MARC LEWIS
Pro Se
784 Quincy Street
Brooklyn, New York 11221
FOR THE DEFENDANTS:
HON. ERIC SCHNEIDERMAN
Office of the Attorney General
State of New York
The Capitol
Albany, New York 12224-0341
GREGORY J. RODRIGUEZ ESQ.
Assistant Attorney General
Gary L. Sharpe
Chief Judge
DECISION AND ORDER
The court cannot locate pro se petitioner, Marc Lewis. Accordingly,
it considers sua sponte Lewis’ 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 9, 2012, Marc Lewis filed a 1983 civil rights action. See
Dkt. No. 1. On April 10, 2012 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. 8. However, the plaintiff 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
District.
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
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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, Lewis has
acknowledged this obligation on nine (9) separate occasions by filing
notices of change of address. See Dkt. Nos. 4, 17, 33, 43, 50, 67, 78, 104
and 107.
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. see 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 February 9, 2015, Judge Peebles issued a Report and
Recommendation that recommended the defendant’s motion for summary
judgment be granted and that the remaining claim in plaintiff’s amended
complaint be dismissed. See Dkt. No. 113. Lewis’ copy was mailed to his
last known address but was marked return to sender/unable to forward vacant. See Dkt. No. 115.
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On March 18, 2015, the Court issued an order directing Lewis to
notify the court by March 25, 2015 of his current address and/or verify that
his mailing address as listed in the caption of this order. See Dkt. No.
116. The court warned Lewis 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 plaintiff.
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, *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.
Lewis’ 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.
Additionally, the Report-Recommendation, to which Lewis has not
objected, has been reviewed and it is hereby
ORDERED that the Report-Recommendation of Magistrate Judge
David E. Peebles filed February 9, 2015 (Dkt. No. 113) is ACCEPTED in
its entirety for the reasons state therein, and it is further
ORDERED that defendant’s motion for summary judgment (Dkt. No.
96) is GRANTED, and that the remaining claim in plaintiff’s amended
complaint is DISMISSED, and, alternatively, the amended complaint is
DISMISSED for Lewis’ failure to notify the court of his current address,
failure to prosecute, and failure to comply with the court’s March 18, 2015
5
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 plaintiff at his last known address.
SO ORDERED.
Dated:
March 30, 2015
Albany, New York
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