Payne v. Coburn et al
Filing
72
DECISION and ORDER - That plaintiff be granted until July 16, 2018 to submit his current mailing address to the court, or verify that his mailing address is as listed in the caption of this order. That, if plaintiff fails to comply, the court will sua sponte dismiss this action for failure to notify the court of his mailing address change, for failure to prosecute, and failure to comply with the Court's Order. ( Notice of Compliance Deadline 7/16/2018, Case Review Deadline 7/19/2018). Signed by Senior Judge Gary L. Sharpe on 7/9/2018. (Copy served via regular mail to the plaintiff at address listed on the docket)(jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
BERTRAM PAYNE,
Plaintiff,
Civil No. 9:15-cv-392
(GLS/TWD)
v.
C.O. COBURN et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR PLAINTIFF:
BERTRAM PAYNE
224 Woodbine Street
Apt #1
Brooklyn, NY 11221
THE KINDLON LAW FIRM, PLLC
Pro Bono Trial Counsel
52 James Street, 5th Floor
Albany, NY 12207
ANTHONY M. PASTEL, ESQ.
GENNARO D. CALABRESE,
ESQ.
FOR DEFENDANTS:
HON. BARBARA UNDERWOOD
New York Attorney General
The Capitol
Albany, NY 12224
Gary L. Sharpe
Senior District Judge
SHANNAN COLLIER
KRASNOKUTSKI
Assistant Attorney General
DECISION AND ORDER
The court cannot locate pro se plaintiff Bertram Payne. Accordingly,
it considers sua sponte plaintiff’s noncompliance with this District's Local
Rules by failing to notify the court of his current address and by not
prosecuting his action.1
On April 2, 2015, plaintiff filed a civil rights action. (Dkt. No. 1.) On
August 4, 2015, the court issued an order warning plaintiff that he is
required to promptly notify the Clerk’s Office and all parties or their counsel
of any change in his address; plaintiff’s failure to do so will result in the
dismissal of this action. (Dkt. No. 9 at 3.) This District has expended
considerable effort in order to familiarize pro se litigants with the Local
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 on the court’s website. In fact, copies of the Handbook have
been provided to all prison libraries in the Northern District.
In relevant part, Local Rule 10.1(c)(2) provides:
1
Despite the fact that pro bono counsel has been appointed, the instant issue of
plaintiff’s failure to notify the court of his current address is outside the scope of counsel’s
appointment, which concerns only the trial of this matter. (Dkt. No. 67 at 3.) Additionally, it
appears that pro bono counsel has had difficulty in reaching plaintiff in connection with the
upcoming trial of this matter. (Dkt. No. 69 at 1.)
2
[P]ro se litigants must immediately notify the
Court of any change of address. Parties must file
the notice of change of address with the Clerk and
serve the same on all other parties to the action. The
notice must identify each and every action to which the notice shall apply
In turn, Local Rule 41.2(b) provides that the “[f]ailure to notify the Court of a
change of address in accordance with L.R. 10.1(c)(2) may result in the
dismissal of any pending action.”
In fact, while this litigation has been pending, plaintiff has
acknowledged this obligation by filing or advising a change of address on
two (2) separate occasions. (Dkt. Nos. 51, 64.)
Local Rule 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. Co., 370 U.S. 626, 633 (1962); see
also Lyell Theater Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982).
On June 22, 2018, the Clerk mailed a copy of the Trial Order to
plaintiff’s last known address by regular mail. The Order was marked
“RETURN TO SENDER - NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD.” (Dkt. No. 70)
For the orderly disposition of cases, it is essential that litigants honor
3
their continuing obligation to keep the court informed of address changes.
See Michaud v. Williams, No. 98CV1141LEKGLS, 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)).
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 or
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 Cty. Corr. Facility Staff, No. 95-CV-1525, 1996 WL
172699 (N.D.N.Y. Apr. 10, 1996) (quoting Perkins v. King, No. 84-3310,
slip op. at 4 (5th Cir. May 19, 1985)).
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, No. 95-CV-741, 1998 WL 278288,
at *1 (N.D.N.Y. May 20, 1998); Fenza, 177 F.R.D. at 126; Dansby, 1996
WL 172699.
4
Although the court concludes that it would be an appropriate exercise
of discretion to dismiss plaintiff’s action at this juncture for failure to notify
the court of his address change or to prosecute his action, it nonetheless
affords plaintiff additional time, until July 16, 2018, to comply with this
Order in providing an address where plaintiff is able to receive mail.
Accordingly, it is hereby
ORDERED that plaintiff be granted until July 16, 2018 to submit his
current mailing 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 plaintiff fails to comply, the court will sua sponte
dismiss this action for failure to notify the court of his mailing address
change, for failure to prosecute, and failure to comply with the Court’s
Order; and it is further
ORDERED that the Clerk serve this Decision and Order on the
plaintiff at his last know address and on all other parties in accordance with
the Local Rules.
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IT IS SO ORDERED.
July 9, 2018
Albany, New York
6
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