Ellis v. The State of New York

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ANTHONY MARK ELLIS, Plaintiff, No. 16-CV-8452 (AME) . ORDER OF DISMISSAL LT. CATALANO, ef al., Defendants.

KENNETH M. KARAS, United States District Judge: Plaintiff Anthony Mark Ellis (“Plaintiff”) brought this Action, pursuant to 42 U.S.C. § 1983, asserting claims of excessive force under the Eighth Amendment against several Defendants. (See generally Am. Compl. (Dkt, No. 15).) On April 23, 2020, the Court issued an Opinion & Order entering judgment in favor of all Defendants except Correctional Officer James Sonko (“Sonko”) and Sergeant Keith Montgomery (“Montgomery”). (See Dkt. Nos. 153, 154.) On June 5, 2020, the Court was notified that copies of the Opinion & Order and Clerk’s Judgment mailed to Plaintiff's last known address were returned as undeliverable. (See Dkt. (entry for June 5, 2020).) On June 10, 2020, the Court issued an Order To Show Cause noting that Plaintiff had been advised of his obligation to promptly submit written notification of any changes in his address, and directing Plaintiff to show cause within 30 days why his remaining claims should

not be dismissed for failure to prosecute. (See Dkt, No. 155.) On June 29, 2020, the Court received notice that a copy of its Order To Show Cause, mailed to Plaintiff’s last known address,

was returned because Plaintiff was no longer at that address. (See Dkt. (entry for June 29, 2020).) Plaintiff has not responded to the Order To Show Cause or otherwise communicated

with the Court. Accordingly, in light of Plaintiff’s failure to notify the Court of his change in

address, the Court dismisses the Action without prejudice. This Court has the authority to dismiss a case for failure to prosecute. See Fed, R. Civ. P.

41(b). Rule 41(b) of the Federal Rules of Civil Procedure provides that a case may be involuntarily dismissed if a plaintiff “fails to prosecute or to comply with these rules or a court

order,” Although Rule 41(b) expressly addresses a situation in which a defendant moves to

dismiss for failure to prosecute, it has long been recognized that a district court has the inherent

authority to dismiss for failure to prosecute sua sponte, See LeSane v. Hall's Sec. Analyst, Inc., 339 F.3d 206, 209 (2d Cir, 2001) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)). While dismissal under Rule 41(b) is subject to the sound discretion of the district courts,

see U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 250-51 (2d Cir. 2004), the Second Circuit has stated that a Rule 41(b) dismissal is a “harsh remedy to be utilized only in extreme

situations,” LeSane, 239 F.3d at 209 (quotation mark omitted) (quoting Theilmann y, Rutland

Hosp., Inc., 455 F.2d 853, 855 (2d Cir, 1972)), However, it has also stated that the authority to

invoke dismissal for failure to prosecute is “vital to the efficient administration of judicial affairs

and provides meaningful access for other prospective litigants to overcrowded courts.” Lye! Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir, 1982). Before exercising its discretionary authority to dismiss for failure to prosecute, a district

court should consider the following factors: [1] the duration of the plaintiff's failures, [2] whether plaintiff had received notice that further delays would result in dismissal, [3] whether the defendant is likely to be prejudiced by further delay, [4] whether the district judge has take[n] care to strik[e] the balance between alleviating court calendar congestion and protecting a party’s right to due process and a fair chance to be heard... and [5] whether the judge has adequately assessed the efficacy of lesser sanctions.

Hardimon vy. Westchester County, No. 13-CV-1249, 2014 WL 2039116, at *1 (S.D.N.Y. May 16, 2014) (alterations in original) (quoting LeSane, 239 F.3d at 209). No single factor is dispositive. See LeSane, 239 F.3d at 210; Hardimon, 2014 WL 2039116, at *1. The Court concludes that these factors weigh in favor of dismissal without prejudice of

Plaintiff’s remaining claims. In granting Plaintiff’s application to proceed in forma pauperis, the

Court advised Plaintiff of his obligation to promptly submit a written notification to the Court in

the event that his address changed, and that failure to do so may result in dismissal of the case.

(See Order Granting IFP Application In Prisoner Case 2 (“[I]t is Plaintiff's obligation to promptly submit a written notification to the Court if Plaintiff's address changes, and the Court may dismiss the action if Plaintiff fails to do so.”) (Dkt No. 4.) The Court then repeated this warning in issuing an Order of Service. (See Order of Service 3 (“Plaintiff also must notify the Court in

writing if his address changes, and the Court may dismiss the action if he fails to do so.”) (Dkt. No. 5).) However, while Plaintiff’s address changed over seven weeks ago, (see Dkt (entries for

June 5, 2020 and June 29, 2020)), Plaintiff has not advised the Court of a new address. Finally, while the Court issued an Order To Show Cause directing that Plaintiff to show cause within 30

days why his remaining claims should not be dismissed in light of this failure, (see Dkt. No.

155), Plaintiff has not responded. Accordingly, Plaintiff’s remaining claims are dismissed without prejudice, for failure to

prosecute, See, e.g, Mena v. City of New York, No. 15-CV-3707, 2017 WL 6398728, at *2

(S.D.N.Y. Dec. 14, 2017) (noting that “a pro se plaintiff is not exempt from complying with court

orders and must diligently prosecute his case”); Capogrosso V. Troyetsky, No. 14-CV-381, 2015

WL 4393330, at *5 (S.D.N.Y. July 17, 2015) (finding the fact that the plaintiff “has not responded to efforts to contact her” weighs im favor of dismissal for failure to prosecute);

Savatxath v. City of Binghamton, No, 12-CV-1492, 2013 WL 4805767, at *1 (N.D.N.Y. Sept. 9, 2013) (dismissing case for failure to prosecute after the plaintiff “neglected to comply with an

order... requiring him to notify the court ... as to why th[e] action should not be dismissed for

failure to prosecute”), Smalls v. Bank of N.Y, Nos. 05-CV-8474, 07-CV-8546, 2008 WL 1883998, at *4 (S.D.N.Y, Apr. 29, 2008) (dismissing case for failure to prosecute where the court

received no communication from the plaintiffs for nearly two months), Robinson v. United

States, No, 03-CV-1001, 2005 WL 2234051, at *2 (S.D.N.Y. Sept. 8, 2005) (“Only the Plaintiff

can be responsible for notifying the court and the Defendant of his updated address, and

Plaintiff’s failure to do so has made it impossible to provide him any notice.”). The Clerk of Court is respectfully directed to mail a copy of this Order to Plaintiff's last

known address, and to close this case. SO ORDERED. Ae DATED: July Of 2020 on White Plains, New York " KENNETH M. KARAS UNITED STATES DISTRICT JUDGE