Guarneri v. Clark et al

Filing 39

DECISION AND ORDER: ORDERED that plaintiff be granted until December 2, 2016 to submit his current mailing address to the court, or verify that his mailing address is as listed in the caption of this order. ORDERED that, if plaintiff fails to compl y, 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 this Order. Signed by Senior Judge Gary L. Sharpe on 11/21/16. (served on plaintiff by regular and certified mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JOSEPH GUARNERI,
9:15-cv-1447
(GLS/ATB)

Plaintiff,
v.
ROBERSON, Correctional Officer,
Albany County Correctional
Facility

Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
JOSEPH GUARNERI
Plaintiff, Pro se
274 Main Street, Apt. 4
Richmondville, New York 12149
FOR THE DEFENDANT:
Albany County Attorney’s Office
112 State Street
Albany, New York 12207

KEVIN MCDONALD
CANNIZZARO, ESQ.

Gary L. Sharpe
Senior District Judge

DECISION AND ORDER
The court cannot locate pro se plaintiff Joseph Guarneri.

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.
On December 7, 2015, plaintiff filed a civil rights action. (Dkt. No. 1.)
On January 27, 2016, the court issued an order granting plaintiff’s in forma
pauperis application and directed the clerk to issue summons and forward
to the U.S. Marshal for service on defendant. (Dkt. No. 3.) Plaintiff was
placed on notice of his requirement to promptly notify the Clerk’s Office
and all parties or their counsel, in writing, of any change in his address; his
failure to do so will result in the dismissal of this action. (Id. at 29.) 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:
[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
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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, Guarneri has
acknowledged this obligation by filing or advising a change of address on
two (2) separate occasions. See Dkt. Nos. 21 and 361.
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 November 3, 2016, Judge Baxter issued a Text Order
summarizing the court’s rulings from the telephonic discovery conference
(Dkt. No. 36.) The Clerk mailed a copy to Guarneri’s last known address,
which he provided during the conference. The Text Order was marked

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On November 3, 2016, during a telephonic discovery conference held before Judge
Baxter, plaintiff provided a new mailing address of 274 Main Street, Apt. 4., Richmondville,
New York 12149.

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“Return to sender - no mail receptacle - unable to forward.” (Dkt. No. 37.)2
For the orderly disposition of cases, it is essential that litigants honor
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

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It is unclear to the court whether or not the plaintiff resides at the address provided
during the telephonic discovery conference, however, it is clear to the court that plaintiff is
unable to receive mail at the address provided due to the lack of a mail receptacle at that
location.

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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.
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 December 2, 2016, 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 December 2, 2016 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 this Order; and
it is further
ORDERED that the Clerk serve this Decision and Order on the
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plaintiff at his last know address and on all other parties in accordance with
the Local Rules.
IT IS SO ORDERED.

November 21, 2016
Albany, New York

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