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.

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     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., 

, 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, 

, 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


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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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