11-1564-pr
Messam v. Bellevue Hosp. Ctr.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 12th day of July, two thousand twelve.
PRESENT:
Amalya L. Kearse,
Rosemary S. Pooler,
Debra Ann Livingston,
Circuit Judges.
_____________________________________
Ronald Messam,
Plaintiff-Appellant,
v. 11-1564-pr
Bellevue Hospital Center, New York
City Department of Correction, New
York City Police Department, Bonnie
Wittner,
Defendants,
New York City Health & Hospital
Corp., Cheryl Leak, (Clerical
Assistant), Jeremy H. Colley, Robert
Morgenthau, New York County District
Attorney, David Lauscher, Assistant
District Attorney, J.S.C., Linda
Curtis, Director of Bellevue Hospital
Center, P O John Doe 1, P O John Doe
2, N.Y.P.D. Officer, John Doe 3,
N.Y.P.D. Officer, John Doe 4,
N.Y.P.D. Officer, John Doe 5,
N.Y.P.D. Officer, John Doe 6,
N.Y.P.D. Officer, Rodzevski, Forensic
Psych. Ward B.H.C., Earlinda
Acampado, Nurse, B.H.C. Psych. Ward,
Fe Bonafe, Nurse, B.H.C. Psych. Ward,
Perez, B.H.C. Psych. Ward, John Doe
9, Orderlie, John Doe 10, Orderlie,
John Doe 11, Orderlie, John Doe 12,
Orderlie, John Doe 13, Orderlie, John
Doe 8, Patient on Psych. Ward at
B.H.C., John Doe 7, N.Y.C. Correction
Captain, Jane Doe 1, N.Y.C.
Correction Officer/B.H.C. Prison
Ward, Jane Doe 2, Nurse, B.H.C.
Psych. Ward, City of New York,
Roberto Casteneda,
Defendants-Appellees.1
_____________________________________
FOR APPELLANT: Ronald Messam, pro se, Dannemora,
N.Y.
FOR APPELLEES (City of
New York, New York City
Health and Hospital
Corporation, Linda Curtis,
Krste Rodveski, Earlinda
Acampado, Fe Bonafe, Perez,
Roberto Casteneda): Fay Ng (Elana Jacob, law student on
the brief), for Michael A. Cardozo,
Corporation Counsel of the City of
New York, New York, N.Y.
FOR APPELLEES (Robert M.
Morgenthau, David Lauscher): Susan C. Roque, Assistant District
Attorney, for Cyrus R. Vance, Jr.,
District Attorney for New York
County, New York, N.Y.
1
The Clerk of Court is directed to amend the official
caption of the case in accordance with the caption shown above.
2
Appeal from a judgment of the United States District Court
for the Southern District of New York (Kaplan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the district court’s order is AFFIRMED.
Ronald Messam, pro se, appeals from the district court’s
dismissal of his complaint. 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. § 636(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, 1999 WL 822488, at *1-2 (2d Cir. Sept. 27,
1999) (unpublished decision) (vacating the district court’s
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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 Ossining, 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
4
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. R. App. P. 39(a).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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