Chavez v. Finney

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

JUAN PABLO CHAVEZ, Plaintiff,

v. No. 19-CV-4109 (RA) SERGEANT WILLIAM FINNEY and ORDER OFFICER STEPHEN STREICHER, Defendants.

RONNIE ABRAMS, United States District Judge: On September 5, 2024, the Court received, via email, a submission from Plaintiff labeled “Scan 09-05-24,” along with three photo images. A copy of Plaintiff’s submission is attached to this Order. The Court construes Plaintiff’s motion as seeking to appear remotely for “the limited purposes of the 9/6 pretrial” conference. Plaintiff’s motion to appear remotely at the pretrial conference scheduled for September 6, 2024 at 2:30 p.m. is granted. All parties shall appear via Microsoft Teams. Members of the public may call into the conference at the following audio-only line: (646) 453-4442; Passcode: 932 330 604#. A video link will be sent to the parties prior to the conference. The Court reminds Plaintiff, however, that he MUST ATTEND TRIAL IN-PERSON ON SEPTEMBER 9, 2024. To the extent Plaintiff contemplates filing a motion to appear remotely at trial, the Court will deny the motion. It is within the district court’s discretion to order a pro se plaintiff to appear in person to prosecute his case. See Rodriguez v. Gusman, 974 F.3d 108, 114 (2d Cir. 2020) (explaining that “[u]nder Federal Rule of Civil Procedure 43(a), [a] judge has discretion to allow live testimony by video for good cause in compelling circumstances and with appropriate safeguards” or to deny remote appearance) (internal quotation marks omitted); see also Fed. R. Civ. P. 43(a). Where a plaintiff is pro se, his absence at trial “could . . . pose[] an insurmountable hurdle” to the prosecution of the case. Rodriguez, 974 F.3d at 114; see also Brown v. Wright, No. 05-cv-82, 2008 WL 346347, at *4 (N.D.N.Y. Feb. 6, 2008) (explaining that a plaintiff “proceeding pro se, must,

of course, appear in person at trial both to present his claims and to testify concerning them”); see also Kuar v. Mawn, No. 08-cv-4401, 2012 WL 3808620, at *9 (E.D.N.Y. Sept. 4, 2012). Because, in Plaintiff’s “absence, the trial cannot proceed,” it would be “unreasonable and unfair to both defendants and the Court to refrain from dismissal if there exists no reasonable possibility that [the plaintiff] will appear in person for trial.” Brown, 2008 WL 346347, at *4. While the Court appreciates Plaintiff’s pro se and IFP status, it notes that both the Pro Se Office of the Southern District of New York and the Court made efforts to find Plaintiff counsel on two occasions, which would have obviated the need for Plaintiff to appear in person. Plaintiff declined to formally retain the first counsel. Plaintiff terminated his relationship with the second

counsel weeks before trial was to begin. For the reasons stated above, the Court warns Plaintiff—as it has numerous times in the weeks leading up to the trial date—that if he fails to appear for trial in person at 40 Foley Square New York, NY 10007, in courtroom 1506 on September 9, 2024 at 9:45 a.m., the case will be dismissed for failure to prosecute under Federal Rule of Civil Procedure 41(b). Should Plaintiff fail to appear remotely via Microsoft Teams for the pretrial conference scheduled for September 6, 2024, the Court will likewise dismiss his case under Rule 41(b). The Court will send a courtesy copy of this Order to Plaintiff via email. Additionally, the Clerk of Court is respectfully directed to mail a copy of this Order to Plaintiff. SO ORDERED. Dated: September 5, 2024 New York, New York / fo / lon. Ronnie Abrams United States District Judge

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UNITED STATES COURT OF APPEALS FOR THE | CIRCUIT Form 4. Motion and Affidavit for Permission to Proceed in Forma Pauperis Instructions for this form: http://www. ).uscourts.gov/forms/form04instructions.;_< ‘Cir. Case Number(s) |_Ent0r lochadipn) □□□ CaseName| CHAVEZ □□□ 7..: e+ af. | Affidavit in support of motion: I swear under penalty of perjury that I am financially unable to pay the docket and filing fees for.my appeal. I believe my appeal has merit. I swear under penalty of perjury under United States laws that my answers on this form areArue andorrect. 28 U.S.C. § 1746; 18 U.S.C. § 1621. J LL / The court may/grant a Motion to proceé forma pauperis if ydu show that you cannot pay the fling fees and you ha‘ on-frivolous legal issue on appeal. Please state your issues on appeal. (attach_udditional pages if necessary) pa preeees Fo ex pi bite The 4m for tre Vp se. re-tria | 1 j aed anh aes centr | ns question s of | | ( ry /s-) on Me fadber Vv. USDA 2S] -W-I172/UN1 ) □□□

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