Horton v. City of New York
Opinion
*823 SUMMARY ORDER
Plaintiff Dale Horton, proceeding pro se, appeals from the dismissal of his 42 U.S.C. § 1983 claim alleging that various police officers used excessive force in .effecting his arrest. 1 The district court ordered dismissal pursuant to Fed.R.Civ.P. 16(f), 37(b), and 41(b), adopting in full the report and recommendation of Magistrate Judge Bloom detailing Horton’s failure to attend ordered pre-trial conferences, comply with discovery orders, and diligently prosecute his case. 2 A party’s failure timely to object to a magistrate judge’s report and recommendation generally waives the defaulting party’s right to appeal, provided that the party received clear notice of the consequences of the failure to object. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003). Here, the magistrate judge’s report and recommendation properly warned that failure to file objections waived the right to appeal and Horton failed to object. Horton contends that his failure to object should be excused because he never received the report and recommendation.
Federal law requires only that “a copy [of the report] be mailed to all parties.” 28 U.S.C. § 636(b)(1)(C). Service by mail of the report, which begins the fourteen-day period within which a party 1 may file objections to the report, is complete upon mailing. See Fed.R.Civ.P. 5(b)(2)(C). There is no indication here that the report was sent to an incorrect address, contra Vaughan v. Erno, 198 F.3d 235, 1999 WL 822488 (2d Cir. 1999) (unpublished decision), as the report was sent to the address identified in Horton’s complaint and notice of address, and Horton acknowledges receipt of other documents sent to the same address. At the same time, the docket indicates that certain court communications mailed to this address were returned as undeliverable, including the report and recommendation. It is a party’s burden to provide the court with an address where he can be reached and to notify the court of any change in that address. Because Horton apparently failed to do so and the record reveals no explanation for that failure, we identify no abuse of discretion in the district court’s dismissal of Horton’s casé. See LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (stating abuse of discretion standard of review).
We note that our decision to affirm the dismissal of Horton’s complaint does not preclude him from moving the district court pursuant to Fed.R.Civ.P. 60(b) to set aside its dismissal based on his failure to receive the magistrate judge’s report and recommendation. See Messam v. Bellevue Hosp. Ctr., 492 Fed.Appx. 147, 149 (2d Cir. 2012) (summary order). Such a motion would allow the district court, on a fuller record, to evaluate whether Horton’s asserted failure to receive the report and recommendation justifies setting aside the dismissal and reinstating his complaint.
*824 Accordingly, we AFFIRM the judgment of the district court without prejudice to the filing of any motion for post-judgment relief in the district court.
. Horton also sued certain judicial officers and prosecutors for delaying his prosecution, which claims the district court dismissed sua sponte on the basis of judicial and prosecuto-rial immunity. Horton does not appeal that ruling and, thus, we do not discuss it further. See, e.g., Oneida Indian Nation of N.Y. v. Madison Cty., 665 F.3d 408, -441 (2d Cir. 2011) (holding forfeited challenge to ruling that was not contested on appeal). '
. Rules 16(f) and 31(b) expressly contemplate the imposition of sanctions sua sponte, see Fed.R.Civ.P. 16(f)(1) (“On motion or on its own, the court may issue any just or-ders____”), 37(b)(2)(A) ("[T]he court where the action is pending may issue further just orders.”), and, "[ajlthough the text of Fed. R.Civ.P. 41(b) expressly addresses only the case in which a defendant moves for dismissal of- an action, it is unquestioned that Rule 41(b) also gives the district court authority to dismiss a plaintiff’s case sua sponte for failure to prosecute,” LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001).
Reference
- Full Case Name
- Dale HORTON, Plaintiff-Appellant, v. CITY OF NEW YORK, New York City Criminal Court, County of Queens, New York City Law Department, New York City Police Department, Defendants-Appellees, John Does 1-8, Harry Nussdorf, Criminal Court of the City of New York, Deborah Wassel, Criminal Court of the City of New York, Suzanne Melendez, Criminal Court of the City of New York, Stephaine Zaro, Criminal Court of the City of New York, Elise Koenderman, Criminal Court of the City of New York, Defendants
- Cited By
- 19 cases
- Status
- Unpublished