Lewis, et al v. Berg, et al, No. 9:2000cv01433 - Document 109 (N.D.N.Y 2005)

Court Description: DECISION AND ORDER that plaintiff's 106 Motion for relief from the Judgment and reconsideration of the Report-Recommendation is granted; that the 103 Order dated March 31, 2005 and the 104 Judgment entered thereon are hereby vacated; that plaintiff file her objections to the 102 Report-Recommendation within twenty (20) twenty days of the filing date of the order; that upon filing of plaintiff's objections and, in all events no later than July 31, 2005, the Clerk return the file to the Court for further consideration. Signed by Judge Gary L. Sharpe on 6/30/2005. (jel, )

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Lewis, et al v. Berg, et al Doc. 109 Case 9:00-cv-01433-GLS-GJD Document 109 Filed 06/30/2005 Page 1 of 4 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK JESSICA M. LEWIS, a/k/a MARK L. BROOKS, Plaintiff, 9:00-CV-1433 (GLS/GJD) v. STAN BERG, Assistant Deputy Superintendent; DANIEL A. SENKOWSKI, Superintendent, Clinton Correctional Facility, Defendants. APPEARANCES: OF COUNSEL: JESSICA M. LEWIS, a/k/a MARK L. BROOKS Plaintiff, pro se 90-A-6426 Clinton Correctional Facility Box 2001 Dannemora, NY 12929-2001 ELIOT SPITZER Attorney General of the State of New York Counsel for the Defendants Department of Law The Capitol Albany, NY 12224 Deborah A. Ferro, Esq. Assistant Attorney General GARY L. SHARPE, U.S. DISTRICT JUDGE DECISION and ORDER By Order filed March 31, 2005, the Report-Recommendation issued by U.S. Magistrate Judge Gustave J. Di Bianco was accepted in its entirety and the defendants motion for summary judgment was granted. Dkt. No. 103. Judgment dismissing this action was duly entered by the Clerk. Dkt. No. 104. Presently before this Court is a motion from plaintiff seeking relief from the Judgment and reconsideration of the Report-Recommendation. Dkt. No. 106. Plaintiff seeks an order of this Court vacating the Order and Judgment, and affording plaintiff an Dockets.Justia.com Case 9:00-cv-01433-GLS-GJD Document 109 Filed 06/30/2005 Page 2 of 4 opportunity to submit objections to the Report-Recommendation to the Court for consideration. Id. Defendants oppose the motion. Dkt. No. 108. According to plaintiff, the Report-Recommendation was mistakenly sent to her1 at Clinton Correctional Facility, and was not received by her at Auburn Correctional Facility (where she has been confined since December, 2004) until March 21, 2005. Dkt. No. 106 at 1-2. Plaintiff states that she promptly prepared her objections and handed them to prison authorities for mailing to the Court on March 28, 2005. Id. at 2.2 Plaintiff s objections were rejected for filing because this action was closed on March 31, 2005, prior to the receipt of the objections. Dkt. No. 105. Rule 60(a) of the Federal Rules of Civil Procedure ( Rule 60(a) ) provides that the courts may order relief from a judgment under the following circumstances relevant here: Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. The purpose of Rule 60(a) is to correct clerical errors so that the judgment accurately reflects the intention of the Court. See Polanco v. Allan, 93-CV-1498 * 1 (N.D.N.Y. July, 5, 1996) (McAvoy, C.J.); see also Rezzonico v. H & R Block, Inc, 182 F.3d 144, (2d Cir. 1999) (Rule 60(a) allows changes that implement the result intended by the court when the order was entered). 1 Plaintiff prefers to be referred to by a female pronoun and the Court will, therefore, refer to her in this manner. 2 According to defendants counsel, plaintiff s objections were due March 28, 2005. Dkt. No. 108 at 1. 2 Case 9:00-cv-01433-GLS-GJD Document 109 Filed 06/30/2005 Page 3 of 4 Upon review of the file, it appears that plaintiff sent a letter dated December 16, 2004 to the Clerk of the Court, advising that plaintiff s address had changed. Although this notice was duly entered on the docket of this action, plaintiff s address was not changed on that portion of the docket which records the addresses used by the Court for service. As a result, the Report-Recommendation was served on plaintiff at her old address. Dkt. No. 102. It is thus clear that plaintiff s receipt of the ReportRecommendation was delayed eleven days due to clerical error by the Clerk s Office in recording plaintiff s change of address. It further appears that plaintiff proceeded to prepare her objections in a timely fashion. Indeed, applying the so-called mail-box rule,3 plaintiff s objections were timely filed notwithstanding the excused delay, and should have been before the Court when the Report-Recommendation was considered. Based upon the foregoing, the Court finds that plaintiff has established that she is entitled to relief from the Judgment and her motion is therefore granted. The Court s Order dated March 31, 2005 and the Judgement entered thereon (Dkt. Nos. 103 and 104) are hereby vacated. Plaintiff is directed to file her objections to the ReportRecommendation within twenty (20) days of the filing date of this Order. WHEREFORE, it is hereby ORDERED, that plaintiff s motion for relief from the Judgment and 3 The Second Circuit has held that, due to the unique difficulties faced by incarcerated pro se litigants, a prisoner s pleading is deemed to be properly filed at the time he hands the papers to the prison authorities for transmittal to the court. Dory v. Ryan, 999 F.2d 679, 681-82 (2d Cir. 1993), modified on reh g, 25 F.3d 81 (2d Cir. 1994); Covington v. City of New York, 916 F.Supp. 282, 286 (S.D.N.Y. 1996). See, Houston v. Lack, 487 U.S. 266, 270-76 (1988) (inmate s notice of appeal is deemed filed at the time of delivery to prison authorities). 3 Case 9:00-cv-01433-GLS-GJD Document 109 Filed 06/30/2005 Page 4 of 4 reconsideration of the Report-Recommendation (Dkt. No. 106) is granted, and it is further ORDERED, that the Order dated March 31,2005 (Dkt. No. 103) and the Judgment entered thereon (Dkt. No. 104) are hereby vacated, and it is further ORDERED, that plaintiff file her objections to the Report-Recommendation (Dkt. No. 102) within twenty (20) days of the filing date of this Order. Plaintiff is advised that the failure to object to the Report-Recommendation in accordance herewith will preclude appellate review. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1, and it is further ORDERED, that upon the filing of plaintiff s objections and, in all events no later than July 31, 2005, the Clerk return the file to the Court for further consideration. IT IS SO ORDERED. Dated: June 30, 2005 Albany, New York 4

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