Lurch, Jr. v. Berry

Background

Robert Derek Lurch Jr., proceeding without a lawyer, brought claims against Margaret Berry, identified in the caption as a nurse. He alleged that his rights were violated while he was incarcerated at Mid-State and Franklin Correctional Facilities. His original complaint was filed in October 2018 in an earlier related proceeding. After venue changes and severance, the claim concerning Franklin Correctional Facility was transferred back to the Southern District of New York and opened as this separate action.

While the case was pending, Lurch reported that he was in the custody of the New York City Department of Correction. Court records indicated that he was released on February 27, 2020. The court stated that Lurch had not notified it of his new mailing address and had not contacted the court in writing or otherwise.

Address-update order

Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action for failure to prosecute, meaning failure to pursue the case. The court ordered Lurch to complete, date, and sign the attached change-of-address form within 30 days of the order. The Clerk was directed to mail the order to an address Lurch had previously provided and record that service on the docket.

The court did not dismiss the action in this order. Instead, it stated that if Lurch failed to comply, it would dismiss the action without prejudice for failure to prosecute. “Without prejudice” means the stated dismissal would not bar refiling on that basis.

Appeal-fee ruling and disposition

Chief Judge Colleen McMahon certified under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith and denied permission to appeal without paying the filing fees. The order therefore required an address update, warned of a possible future dismissal without prejudice, and denied appeal-related fee-waiver status; it did not decide the merits of Lurch’s underlying claims.