Messam v. Bellevue Hospital Center

492 F. App'x 147

• Court: Court of Appeals for the Second Circuit
• Decided: July 12, 2012
• Docket: 11-1564-pr
• Status: Unpublished

Opinion

SUMMARY ORDER

Ronald Messam, pro se, appeals from the district court’s dismissal of his com plaint. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

Messam has waived any objections he may have had to the dismissal of his complaint by failing to object to the magistrate judge’s report and recommendation, which advised the district court that Messam’s complaint should be dismissed. See Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989).

While Messam claims on appeal that he never received a copy of the magistrate judge’s report and recommendation, federal law only requires that “a copy [of the report] be mailed to all parties,” 28 U.S.C. § 686(b)(1)(C), and service by mail of the report, which begins the fourteen-day period within which a party may file objections to the report, see 28 U.S.C. § 636(b)(1), is complete upon mailing, see Fed.R.Civ.P. 5(b)(2)(C). Moreover, there is no indication that the copy of this report and recommendation was sent to an incorrect address. Cf . Vaughan v. Erno, No. 98-3721, 198 F.3d 235, 1999 WL 822488, at *1-2 (2d Cir. Sept. 27, 1999) (unpublished decision) (vacating the district court’s dismissal of plaintiff’s lawsuit and noting that “[t]he Clerk had mistakenly sent the R & R to an incorrect post office box address, instead of the street address as noticed by Vaughan,” and that “Vaughan’s inability to respond to the R & R was the result of the court’s own failure to comply with the service requirements of § 636(b)(1)” (emphasis added)).

In the present case, the magistrate judge’s report and recommendation, dated January 10, 2011, was mailed to Messam at Sing Sing Correctional Facility in Ossin-ing, N.Y. (“Sing Sing”), the address on record for Messam and the address he had used on his most recent letter to the court, dated December 6, 2010. Messam does not claim on appeal that he, after having sent that letter, dated December 6, 2010, sent the district court a timely notice stating that Sing Sing was no longer his address.

We note that our affirming the dismissal of Messam’s complaint does not preclude him from moving, before the district court, for relief pursuant to Federal Rule of Civil Procedure 60(b), requesting that the district court set aside the dismissal of his complaint based on Messam’s claim that he never received the magistrate judge’s report and recommendation. Indeed, such a motion, pursuant to Rule 60(b), would provide the district court with an opportunity to evaluate Messam’s factual claim that he never received the magistrate’s report, as well as an opportunity to determine, in the first instance, whether any such failure to receive the report justifies setting aside the dismissal of his complaint.

Accordingly, the judgment of the district court hereby is AFFIRMED without prejudice. Given the circumstances of this case, we deny the request, made by some of the appellees, for costs, and instead order that each side will bear its own costs. See Fed. RApp. P. 39(a).