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Roby v. Gilbert

United States District Court, N.D. Indiana, South Bend Division

December 1, 2014

JEROME ROBY, Plaintiff,
DAVID GILBERT, et al., Defendants.


JON E. DEGUILIO, District Judge.


Jerome Roby, a pro se plaintiff, filed two § 1983 complaints in this Court (case 1081 and case 1154), raising constitutional claims with respect to arrests and searches which took place in February and October 2013. On November 7, 2013, Roby filed a letter indicating that his address had changed from 816 South Galitan Street to 308 East 14th Street [case 1081 DE 4]. Despite using this updated mailing address, various filings and orders have been returned to defense counsel and the Court indicating that the documents were undeliverable as addressed and could not be forwarded. As a result, the defendants in case 1154 moved to dismiss for lack of prosecution.

Rather than penalizing Roby with outright dismissal of his cases, the Court (after detailing the ongoing problems resulting from Roby's failure to keep an updated mailing address on file), ordered Roby to provide a current mailing address which would allow his consistent receipt of all filings [case 1081 DE 29; case 1154 DE 19]. The undersigned explicitly cautioned Roby that if he failed to respond by March 21, 2014, his cases would be dismissed without further notice. Id. That order was also mailed to the plaintiff at his last known address, 308 East 14th Street, but was returned to the Court as undeliverable [case 1081 DE 31; case 1154 DE 20]. Roby did not respond to the order or otherwise contact the Court by March 21. As a result, on April 4, 2014, consistent with the Court's explicit warning, Roby's cases were dismissed without prejudice for failure to provide a current mailing address and failure to comply with the Court's order [case 1081 DE 33; case 1154 DE 21].

After being arrested on or about April 7, 2014, Roby updated the Court with his Grant County Jail address and filed a motion pursuant to Rule 60(b) to reinstate the cases [case 1081 DE 36; case 1154 DE 23]. In his motion, Roby represented that after he received one of the Court's dismissal orders at his 308 East 14th Street address (from case 1154[1]), he realized that "someone at [his] address sent papers back to the courts" while he was hospitalized.[2] Therefore, Roby argued that his cases should be reinstated as a result of his "excusable neglect."

Roby did not identify who that "someone" at his residence may have been, and he did not produce any evidence of his being unavailable for approximately four months (given that the return of mailings began in November 2013 and continued through April 2014) due to his alleged hospitalization. In addition, while not consistently receiving filings at the 308 East 14th Street address, Roby continued to file papers in both of his cases without providing an updated address.

Naturally, the defendants objected to Roby's request to reinstate his cases, indicating that it is more likely that Roby was evading arrest up until April 10, since state criminal charges had been filed against him on November 12, 2013 in case 27C01-1311-FB-000074 [case 1081 DE 37-1; case 1154 DE 24-1]. These charges were brought after Roby's home (located at 308 East 14th Street, per the warrant) was searched on October 24, 2013 [case 1154 DE 1, DE 1-1].

In reply, Roby filed a letter indicating that certain police officers, who are named defendants in the instant cases, were responsible for intentionally altering his mailing address with the post office, in an attempt to get these lawsuits dismissed [case 1081 DE 42; case 1154 DE 27]. Roby confirmed that his mail should be going to his 308 East 14th Street address.

Upon issuing a report and recommendation with respect to Roby's requested reinstatement [case 1081 DE 43; case 1154 DE 28], the magistrate judge determined on October 2, 2014, that Roby had failed to show any justification for relief under Fed.R.Civ.P. 60(b) because ultimately Roby had neglected his cases by avoiding service of documents throughout the litigation, and he had failed to show that his neglect was in any way excusable. The magistrate judge further concluded that Roby had provided no evidence to support his allegations that others were diverting his mail.

On October 23, 2014, Roby filed a belated objection to the magistrate judge's report and recommendation [case 1081 DE 44; case 1154 DE 29], entitled a motion to correct errors under Rules 59 and 60. Therein, Roby indicated that he had mistakenly reported his address as being 308 East 14th Street, when in fact his address is really 803 East 14th Street. Roby also claimed that the Department of Child Services somehow played a role in his not receiving his court mail because he was ordered to live elsewhere while his children lived in the family home.[3]

Defendants responded to Roby's objections [case 1081 DE 46, DE 48; case 1154 DE 31]. They acknowledged that Roby's untimely objections, which were due by October 20, 2014, may still be considered by the Court, although they believe the untimeliness of the objections serve as further evidence of Roby's dilatory conduct and failure to actively prosecute his claims. Moreover, defendants have represented that a search for Roby's newly claimed address of 803 East 14th Street, revealed that it is not a valid address.


Although Roby's objections were filed a few days late, the filing deadline is not jurisdictional; and thus, the Court is not barred from considering them. Kruger v. Apfel, 214 F.3d 784, 786-87 (7th Cir. 2000). In addition, the filing was not egregiously late and didn't cause prejudice to defendants who have taken the opportunity to respond to Roby's belated filing. Id. Therefore, consistent with Federal Rule of Civil Procedure 72(B), the undersigned undertakes a de novo review "of those portions of the magistrate judge's disposition to which specific written objection is made." Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995). After conducting the requisite de novo review of the magistrate judge's report and recommendation, the undersigned has discretion to accept, reject, modify, in whole or in part, the findings or recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1).

Whether Roby's motion to reinstate is considered a motion pursuant to Rule 59(e), thereby requiring him to clearly establish that the court committed a manifest error of law or fact, or that newly discovered evidence precluded entry of judgment; or, Roby's request for relief is considered under the more stringent standard of Rule 60(b), which is an "extraordinary remedy" granted only in exceptional circumstances, Roby's motion to reinstate is appropriately denied. See Cincinnati Life ...

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