Opinion
11 CV 6346 (SLT)(LB)
10-12-2012
JUNIOR BERNARD, Plaintiff, v. OFFICER ROMEN, Defendant.
REPORT & RECOMMENDATION BLOOM, United States Magistrate Judge :
By Order dated September 6, 2012, the Court directed plaintiff to provide his current address by September 21, 2012 or his case would be dismissed. See ECF No. 13. Although plaintiff provided an address and inmate identification number at the Anna M. Kross Center ("AMKC") when he filed his Complaint, a search of the New York City and New York State Department of Corrections websites indicates that plaintiff is no longer in custody, and mail sent to plaintiff at the address he provided has been returned to the Court on two occasions. Notwithstanding the Court's Order, however, plaintiff has failed to update his mailing address, and the Court has no way of contacting plaintiff. Accordingly, plaintiff's complaint should be dismissed without prejudice.
BACKGROUND
On December 27, 2011, plaintiff filed this pro se civil rights action pursuant to 42 U.S.C. §1983 alleging defendant sexually assaulted him. See ECF No. 1. Plaintiff's Complaint lists his address as: AMKC, 18-18 Hazen Street, East Elmhurst, New York 11370. Id. at 3, 5. By Order dated August 9, 2012, the Court scheduled an initial telephone conference for September 13, 2012. See ECF No. 11. The Court directed the Warden of AMKC to make plaintiff available at the scheduled time and requested that counsel for the defendant arrange and initiate the conference by calling the Court after establishing contact with plaintiff. Id.
By letter dated September 5, 2012, counsel for defendant notified the Court that plaintiff was no longer in the custody of the New York City Department of Correction. See ECF No. 12. Counsel for defendant also informed the Court that a search of the New York City and New York State Department of Corrections websites indicates that plaintiff is no longer in custody. Id.
In hope that plaintiff might "turn up," and because no other address was provided, the Court issued an Order dated September 6, 2012 directing plaintiff to provide an address where he could be contacted by September 21, 2012, or face dismissal of his claims. See ECF No. 13 ("Should plaintiff fail to contact the Court to provide a current address by September 21, 20012, I will recommend that this case should be dismissed without prejudice."). On September 17, 2012, the Court's Order directing plaintiff to provide his current address was returned with the postal notation "Return to Sender. No Such Number. Unable to Forward," and the handwritten note "no such inmate." See ECF No. 14. On October 4, 2012, the Court's Order was returned a second time with the notation "Return to Sender. Not Deliverable as Addressed. Unable to Forward," and the handwritten note "inmate no longer in system." See ECF No. 15.
DISCUSSION
Rule 16(f) of the Federal Rules of Civil Procedure provides: "[o]n motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), [i]f a party or its attorney . . . fails to appear at a scheduling or other pretrial conference; . . . or fails to obey a scheduling or other pretrial order" (emphasis supplied). Under Rule 37(b)(2)(A)(v), the Court may dismiss the complaint for a party's failure to comply with a Court Order. See Fed. R. Civ. P. 37(b)(2)(A) ("[T]he court where the action is pending may issue further just orders. They may include the following: . . . (v) dismissing the action or proceeding in whole or in part."). The sanction of dismissal "may be imposed even against a plaintiff who is proceeding pro se, so long as warning has been given that noncompliance can result in dismissal." Valentine v. Museum of Modern Art, 29 F.3d 47, 49 (2d Cir. 1994); see also Agiwal v. Mid Island Mortgage Corp., 555 F.3d 298 (2d Cir. 2009) (dismissing pro se plaintiff's case for failing to comply with the Court's orders).
Plaintiff was warned by the Court's September 6, 2012 Order that I would recommend that his action should be dismissed if he failed to provide a current address. See ECF No. 13. That Order was sent to the address plaintiff listed on his complaint, which is the only address the plaintiff has provided to the Court. See ECF No. 1. The Order was returned as undeliverable. See ECF Nos. 14, 15. It is plaintiff's responsibility to keep the Court informed of his current address. See Concepcion v. Ross, No. CV-92-770, 1997 WL 777943, at *1 (E.D.N.Y. Oct. 27, 1997); see also Handlin v. Garvey, No. 91-cv-6777, 1996 WL 673823, at *5 (S.D.N.Y. November 20, 1996) (explaining that the duty to inform the court and defendant of a current address is "an obligation that rests with all pro se plaintiffs"). When a pro se litigant fails to provide the Court with notice of a change of address, the Court may dismiss the litigant's claims. See, e.g., Dong v. United States, 02-cv-7751, 2004 WL 385117, at *3 (S.D.N.Y. March 2, 2004) (dismissing a pro se plaintiff's claim when the plaintiff failed to inform the court of his current address, causing the court to lose contact with him for two months).
Notwithstanding the Court's Order to provide a current mailing address, plaintiff has not done so. As the Court has no way of contacting plaintiff to proceed with this lawsuit, no lesser sanction than dismissal is appropriate under these circumstances.
CONCLUSION
Accordingly, it is recommended that plaintiff's action should be dismissed without prejudice.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of Court. Any request for an extension of time to file objections must be made within the fourteen day period. Failure to file a timely objection to this Report generally waives any further judicial review. Marcella v. Capital Dist. Physicians' Health Plan, Inc., 293 F.3d 42 (2d Cir. 2002); Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989); see Thomas v. Arn, 474 U.S. 140 (1985). SO ORDERED.
/s/_________
LOIS BLOOM
United States Magistrate Judge Dated: October 12, 2012
Brooklyn, New York