Ackridge v. P.O. Martinez #8700 et al
Filing
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MEMORANDUM OPINION AND ORDER re: 30 MOTION for Summary Judgment filed by The New Rochelle City Police Department, P.O. Martinez #8700. Defendants' motion for summary judgment is GRANTED, and plaintiffs claims are dismissed with prejudice. The Clerk is directed to close this case. (Signed by Judge Richard J. Holwell on 11/22/2011) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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RONALD M. ACKRIDGE,
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Plaintiff,
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-against:
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P.O. MARTINEZ #8700 and the NEW
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ROCHELLE CITY POLICE DEPARTMENT
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Defendants.
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09 Civ. 10400 (RJH) (LMS)
MEMORANDUM
OPININION & ORDER
Before the court is defendants’ June 13, 2011 motion for summary judgment. For
the reasons below, the court adopts Magistrate Judge Lisa M. Smith’s thorough and wellreasoned Report and Recommendation of September 26, 2011 in full.
As Plaintiff failed to oppose defendants’ motion for summary judgment, and
further failed to object to Judge Smith’s Report and Recommendation, the court provides
the following review of its attempted communications with plaintiff.
Background
On December 14, 2009, plaintiff commenced this action pro se in New York State
Supreme Court, Bronx County, claiming false arrest, false imprisonment, malicious
prosecution, emotional distress, and negligent investigation. On December 22, 2009,
defendants removed the action to this court. In his state court filing, plaintiff provided his
address as 771 E. 233rd Street, Bronx, New York, 10466.
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On February 4, 2010, plaintiff provided the court with a second mailing address
of 1851 Phelan Place, Bronx, NY, 10466. However, court mailings to this address were
repeatedly returned. (See docket entries of March 18, 2010, March 25, 2010, March 31,
2010, May 19, 2010, and June 10, 2010).
On June 15, 2010, Plaintiff provided the court with a third mailing address,
including an inmate number, at the Westchester County Jail: P.O. Box 10, Valhalla, NY,
10595. Plaintiff has not subsequently updated his address, and this remains plaintiff’s
address of record on the court’s docket sheet.
Magistrate Judge Lisa M. Smith held an in-court status conference with the
parties on November 2, 2010. At the conference, Mr. Ackridge acknowledged that he had
recently been released from the Westchester County Jail (See Transcript of Nov. 2, 2010
hearing at 15.) At the status conference, Judge Smith instructed plaintiff to obtain a copy
of the court’s Pro Se manual, thoroughly explained plaintiff’s responsibilities in
prosecuting his case, and asked plaintiff to update his address with the court. (Id. at 1617.) However, plaintiff subsequently failed to provide the court with a new address.
Plaintiff participated by telephone in a status conference on March 9, 2011.
Plaintiff indicated at that time that he was again incarcerated in the Westchester County
Jail, and that all his legal paperwork had been lost. (See Transcript of Mar. 9, 2011
hearing at 4.) Plaintiff’s original Westchester County Jail address remained on file in the
case. The court instructed defendants’ counsel to forward plaintiff a copy of all
documents in its file previously exchanged by either side. (Id. at 6.) Defendants indicated
their intent to file a motion for summary judgment, and Judge Smith carefully explained
to plaintiff his obligation to respond. (Id. at 13-14.) On May 9, 2011, a further status
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conference was held, in which plaintiff participated. At said conference, defendants’
filing deadline was extended to June 6, 2011, and plaintiff’s opposition deadline was
extended to July 18, 2011.
Defendants moved for summary judgment on June 13, 2011. In their filing,
defendants argued inter alia that all of plaintiff’s claims were precluded, directly or
indirectly, by his guilty plea of March 6, 2009, and that the New Rochelle Police
Department was not a suable entity. (See Mem. of Law in Supp. of Mot. for Summ. J.,
docket no. [32].) Defendants included a Notice to Pro Se Litigant, indicating plaintiff’s
responsibilities in opposing the motion. (See Notice to Pro Se Litigant, docket no. [29].)
The Notice stated in part, “If you do not respond to the motion on time with affidavits or
documentary evidence contradicting the facts asserted by the defendants, the Court may
accept defendants’ factual assertions as true. Judgment may then be entered in
defendants’ favor without a trial.” (Id. at 2.) Defendants provided the court with an
affidavit of service, indicating that all motion papers had been served by mail on plaintiff,
now housed at the George Motchan Detention Center, 15-15 Hazen Street, East Elmhurst,
NY 11370.
On June 27, 2011, Judge Smith sua sponte extended plaintiff’s opposition
deadline to August 12, 2011. Although notice of the extended deadline was entered onto
the docket, there is no record that notice of the extension was given to plaintiff.
Nevertheless, no opposition to the motion was filed before or after the extended deadline.
On September 26, 2011, Judge Smith issued a Report and Recommendation (“the
‘400 Report” [35]) recommending that the Court grant defendants’ motion. The ‘400
Report indicated that any objections thereto were to be filed within 17 days of its entry,
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pursuant to 28 U.S.C. § 636(b)(1), as amended, and Fed. Rs. Civ. P. 72(b) and 6(d). (See
id. at 13.) On the same date, Judge Smith issued a Report and Recommendation in
another of plaintiff’s matters, Ackridge v. New Rochelle City Police Department, 09 Civ.
10396 (the “’396 Report”, and collectively with the ‘400 Report, “Reports”).
Before the Reports were mailed to plaintiff, the court reviewed the electronic
inmate indices at the Westchester County Jail and at the George Motchan Detention
Center. The court found that Ackridge was no longer incarcerated there, and thus that his
address of record and his last known address were invalid. Accordingly, the court
contacted defense counsel, who had recently communicated with plaintiff through an
attorney he retained in a related matter. The court thus forwarded copies of the Reports to
plaintiff’s attorney at the provided address.
The ‘396 Report was apparently received by plaintiff, as he responded with
objections on October 20, 2011. Nevertheless, no objections have been entered to the
‘400 Report in the present action. The statutory period for filing objections has expired,
and defendant has not provided a change of address to the court.
Discussion
In reviewing a Report and Recommendation, the district court “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C). Where no objection to a Report and Recommendation
has been filed, the district court “need only satisfy itself that there is no clear error on the
face of the record.” Urena v. New York, 160 F.Supp.2d 606, 609–10 (S.D.N.Y. 2001)
(quoting Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y. 1985).
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The court recognizes the possibility that plaintiff never received copies of
defendants’ Motion for Summary Judgment and thus failed to oppose the motion, or to
timely object to the ‘400 Report. However, plaintiff was undoubtedly aware that the
Motion was forthcoming, having been so informed by the parties and by Judge Smith in
numerous telephone conferences. Regardless, when a party changes addresses, it is his
obligation to notify the court of his new address. See Handlin v. Garvey, No. 91 Civ.
6777, 1996 WL 673823, at *5 (S.D.N.Y. Nov.20, 1996) (explaining that the duty to
inform the court and defendants of current address is “an obligation that rests with all pro
se plaintiffs”); Dong v. United States, No. 02 Civ. 7751, 2004 WL 385117, at *3
(S.D.N.Y. Mar. 2, 2004) (finding dismissal appropriate where plaintiff was inaccessible
for the preceding two months “without notifying the Court, the Government, or the Pro
Se Office of a change of address”). Plaintiff clearly understands how to inform the court
of an address change, as he did so on two previous occasions. And, in any event, plaintiff
is likely to have received the ‘400 Report, as plaintiff received and responded to the ‘396
Report, sent to the same recipient on the same day.
Therefore, as plaintiff did not object to the ‘400 Report within the statutory
period, the court reviews it for clear error only. Upon review of the record before the
court and the ‘400 Report, the court finds that there is no clear error in it, and hereby
affirms and adopts it in its entirety as the opinion of the court.
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Conclusion
Defendants' motion for summary judgment is GRANTED, and plaintiffs claims
are dismissed with prejudice. The Clerk is directed to close this case.
SO ORDERED.
Dated: New York, New York
N
IN -
').. ~
,2011
~-Richard J. Holwell
United States District Judge
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