     09-1686-pr
     Sanders v. New York City Department of Corrections


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
       RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY
       ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE
       OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY
       ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL
       APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY
       CITING TO A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
       COUNSEL.


 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3   on the 12th day of May, two thousand ten.
 4
 5   PRESENT:
 6               ROGER J. MINER,
 7               GERARD E. LYNCH,
 8                     Circuit Judges,
 9               DAVID G. TRAGER,*
10                     District Judge.
11   _____________________________________
12
13   Marvin Sanders,
14
15                              Plaintiff-Appellant,
16
17                     v.                                                No. 09-1686-pr
18
19   New York City Department of Corrections, Martin
20   F. Horn, Commissioner, Security Captain Lockhard,
21   North Infirmary Command, Jerome I. Davis, Dept.
22   of Security, N.I.C., C.O. Davis, N.I.C., C.O.
23   D’Ammico, Frank Squillante, Warden, N.I.C.,
24
25                              Defendants-Appellees.
26
27   _____________________________________


              *
             Honorable David G. Trager, Senior Judge of the United States District Court for
     the Eastern District of New York, sitting by designation.
 1                                                 Marvin Sanders, pro se, Bronx, NY, for Plaintiff-
 2                                                 Appellant Sanders.
 3
 4                                                 Michael A. Cardozo, Corporation Counsel of the
 5                                                 City of New York; Alan G. Krams, Assistant
 6                                                 Corporation Counsel, New York, NY, for
 7                                                 Defendants-Appellees New York City Department of
 8                                                 Corrections, Horn, Jerome Davis, and Squillante.
 9
10                                                 No appearance, for Defendants-Appellees Lockhard,
11                                                 C.O. Davis, and D’Ammico. See Fed. R. App. P.
12                                                 31(c).

13          Appeal from a judgment of the United States District Court for the Southern District of

14   New York (Stein, J.; Dolinger, M.J.).

15          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

16   DECREED that the judgment of the district court is AFFIRMED.

17          Plaintiff-Appellant Marvin Sanders, proceeding pro se, appeals the district court’s grant

18   of summary judgment on his 42 U.S.C. § 1983 claims in favor of Defendants-Appellees. We

19   assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

20   the issues on appeal.

21          This Court reviews a district court’s grant of summary judgment de novo, construing the

22   evidence in the light most favorable to the non-moving party. See Miller v. Wolpoff &

23   Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). In doing so, this Court must determine

24   whether the district court properly concluded that there were no genuine issues of material fact

25   and that the moving party was entitled to judgment as a matter of law. Id. However, “conclusory

26   statements or mere allegations [are] not sufficient to defeat a summary judgment motion.” Davis

27   v. State of New York, 316 F.3d 93, 100 (2d Cir. 2002).



                                                      2
1           Sanders argues that the district court’s grant of summary judgment was improper because

2    he never received the summary judgment motion papers. In response, Appellees Horn, Jerome

3    Davis, Squillante, and the New York City Department of Corrections (the “City Defendants”)

4    argue that they properly served the papers on Sanders by mailing them to the last address he had

5    provided to the district court.

6           Federal Rule of Civil Procedure 5 provides that a party may serve a “written motion” by

7    “mailing it to the person’s last known address – in which event service is complete upon

8    mailing.” Fed. R. Civ. P. 5(a)(1)(D), (b)(2)(C). Although the City Defendants’ first service was

9    made by mailing the papers to an older address for Sanders, the City Defendants filed an

10   amended declaration of service after mailing the papers to Sanders’s correct last known address.

11   The second service therefore complied with Rule 5.

12          This Court has recognized that, in the context of notice to parties of court actions and

13   proceedings, “[t]he proper focus of the due process inquiry is not whether notice . . . was actually

14   received but whether the means selected were ‘such as one desirous of actually informing the

15   [litigant] might reasonably adopt to accomplish it.’” Grievance Comm. v. Polur, 67 F.3d 3, 6 (2d

16   Cir. 1995) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950)).

17   Here, the means selected by City Defendants – mailing the motion papers to Sanders’s last

18   known address – were reasonably calculated to provide Sanders with actual notice of the motion

19   and, thus, they also satisfied the requirements of due process.

20          With respect to the merits of the motion, an independent review of the record and relevant

21   case law reveals that the district court properly granted summary judgment. We affirm for

22   substantially the same reasons stated by the district court in its thorough January 30, 2009 order,


                                                      3
1   noting in particular that all of Sanders’s claims are time-barred because the events in question

2   occurred outside the three-year limitations period.

3          We have considered all of Sanders’s arguments and find them to be without merit.

4   Accordingly, we AFFIRM the judgment of the district court.
5
6                                                 FOR THE COURT:
7                                                 Catherine O’Hagan Wolfe, Clerk
8




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