Henry v. Dinello

• Court: District Court, N.D. New York
• Decided: October 25, 2021
• Docket: 9:19-cv-01059
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ___________________________________________

THOMAS HENRY,

Plaintiff,

v. 9:19-CV-1059 (DNH/TWD)

DAVID DINELLO, Defendant. ____________________________________

APPEARANCES: OF COUNSEL:

THOMAS HENRY Plaintiff, pro se 19711 Cayuga County Jail 7445 County House Road Auburn, New York 13201

HON. LETITIA JAMES KONSTANDINOS D. LERIS Attorney General for the State of New York Assistant Attorney General Counsel for Defendant The Capitol Albany, New York 12224

THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION I. INTRODUCTION Thomas Henry (“Plaintiff”), an inmate formerly in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), commenced this action pro se on August 28, 2019, against David Dinello (“Defendant” or “Dr. Dinello”). (Dkt. No. 1.) On October 4, 2019, the Honorable David N. Hurd, United States District Judge, dismissed Plaintiff’s complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted but afforded him an opportunity to file an amended complaint. (Dkt. No. 7 at 13.1) Plaintiff filed an amended complaint on October 18, 2019. (Dkt. No. 8.) On December 6, 2019, Judge Hurd construed Plaintiff’s amended complaint as stating an Eighth Amendment medical indifference claim against Dr. Dinello. (Dkt. No. 9.)2 On March 9,

2020, Defendant filed a motion for summary judgement, or, alternatively, to dismiss for failure to state a claim. (Dkt. No. 18.) On March 27, 2020, Plaintiff filed a response in opposition to Defendant’s motions. (Dkt. No. 23.) On April 9, 2020, Defendant filed a reply. (Dkt. No. 24.) On June 11, 2020, Plaintiff filed a notice of change of address. (Dkt. No. 25.)3 On January 12, 2021, this Court recommended denying Defendant’s motions. (Dkt. No. 27.) The Clerk was directed to provide a copy of the order to Plaintiff. Id. at 8. On January 27, 2021, the mailed copy of that order was returned and the envelope was marked “Return to Sender – Not Deliverable as Addressed – Unable to Forward.” (Dkt. No. 28.) On February 4, 2021, Judge Hurd adopted this Court’s recommendation and denied

Defendant’s motions. (Dkt. No. 29.) Judge Hurd directed the Clerk to provide a copy of the order to Plaintiff. Id. at 2. On February 18, 2021, Defendant filed an answer. (Dkt. No. 30.) Defendant served a copy of the answer to Plaintiff’s last listed address. (Dkt. No. 30-1.) That

1 Page references to docket entries are to the page number the Court’s CM/ECF system automatically assigns.

2 The October 4, 2019, and December 6, 2019, decisions stated “Plaintiff is . . . required to promptly notify, in writing, the Clerk’s Office and all parties or their counsel of any change in plaintiff’s address; his failure to do so will result in dismissal of his action[.]” (Dkt. No. 7 at 14; Dkt. No. 9 at 11.)

3 Plaintiff’s mailing address was listed as “Cayuga County Jail, 7445 County House Road, Auburn, NY 13021.” (Dkt. No 25.) same day the Court issued the Mandatory Pretrial Discovery and Scheduling Order. (Dkt. No. 31.) The Court mailed a copy of the Scheduling Order to Plaintiff. Id. Judge Hurd’s February 4, 2021, order adopting this Court’s recommendation was returned as undeliverable on February 22, 2021. (Dkt. No. 32.) The Scheduling Order was returned as undeliverable on February 26, 2021. (Dkt. No. 33.) Defendant’s answer was

returned to counsel’s office as undeliverable on March 15, 2021. (Dkt. No. 34 at 2.) On March 16, 2021, Defendant filed a letter motion requesting a telephone conference. Id. The letter informed the Court that Plaintiff was no longer in DOCCS’ custody. Id. On April 9, 2021, this Court issued a Text Order staying the previously established deadlines and directing Plaintiff “to file a change of address and a statement with the Court by 4/30/2021 indicating his interest in continuing to pursue this action.” (Dkt. No. 35.) The Text Order warned that “Plaintiff’s failure to respond to this directive may result in sanctions including, but not limited to, dismissal of the action for failure to prosecute and failure to follow Court orders and directives.” Id. A copy of the Text Order was sent to Plaintiff’s last reported

address. Id. On April 19, 2021, the copy of the Text Order was returned to the Court as undeliverable. (Dkt. No. 36.) Plaintiff has not provided any response to the Text Order either to the Court or to Defendant. On May 5, 2021, the Court directed Defendant to file a motion seeking dismissal for failure to prosecute and failure to follow Court orders and directives. (Dkt. No. 37.) A copy of this Text order was sent to Plaintiff at the address the Court has on file for him and it was also returned as undeliverable. (Dkt. No. 38.) A subsequent search of DOCCS’ website revealed that Plaintiff was released from DOCCS’ custody to parole supervision on May 22, 2020. (Dkt. No. 39-2 at 3.) Plaintiff’s last communication with this Court was the notice of change of address, filed on June 11, 2020. (Dkt. No. 25.) Presently before the Court is Defendant’s motion to dismiss pursuant to Rule 41 of the Federal Rules of Civil Procedure and Rules 10.1(c)(2) and 41.2(b) of this District’s Local Rules of Practice. (Dkt. No. 39.) In a memorandum in support of his motion, Defendant argues the

Court should dismiss the action for failure to prosecute because Plaintiff’s “failure to notify this Court or defense counsel of his change of address has rendered Defendant unable to begin discovery or take Plaintiff’s deposition.” (Dkt. No. 39-2 at 7.) For the reasons that follow, the Court recommends granting Defendant’s motion. II. MOTION TO DISMISS FOR FAILURE TO PROSECUTE Rule 41 of the Federal Rules of Civil Procedure States that, “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claims against it.” Fed. R. Civ. P. 41(b).4 “A dismissal under this subdivision . . . operates as an adjudication on the merits.” Id. The Second Circuit has emphasized that

“dismissal for failure to prosecute is a ‘harsh remedy to be utilized only in extreme situations.’” U.S. ex rel. Drake v. Norden Systems, Inc., 375 F.3d 248, 254 (2d Cir. 2004) (quoting Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)). A Court analyzing a motion to dismiss must weigh the following five factors: – (1) the duration of the plaintiff’s failure to comply with the court order, (2) whether plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are likely to be prejudiced by further delay in the proceedings, (4) a balancing

4 Local Rule 10.1(c)(2) states that “all attorneys of record and pro se litigants must immediately notify the court of any change of address,” and requires parties to file the notice of change with the Clerk and serve all other parties to the action. L.R. 10.1(c)(2). Another Rule provides that “failure to notify the Court of a change of address in accordance with [Local] Rule 10.1(c)(2) may result in the dismissal of any pending action.” L.R. 41.2(b). of the court’s interest in managing its docket with the plaintiff’s interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal.

Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (citations omitted). No singular factor is dispositive. Nita v. Connecticut Dep’t of Environmental Protection, 16 F.3d 482, 485 (2d Cir. 1994). The Court will address these factors in turn. A. Duration Plaintiff’s last communication with the Court was the notice of change of address, filed on June 11, 2020. (Dkt. No. 25.) Plaintiff’s address was listed as “Cayuga County Jail, 7445 County House Road, Auburn, NY 13021.” Id. The first use of this address to reach Plaintiff was the Clerk’s mailing of this Court’s January 12, 2021, Order and Report-Recommendation. (Dkt. No. 27.) The Order was returned as “undeliverable” on January 27, 2021. (Dkt. No. 28.) Giving Plaintiff the benefit of doubt, the Court finds he has failed to comply with the Court’s directives since at least January 27, 2021, i.e., the first date mail was returned. However, his last actual contact with the Court was June 11, 2020. (Dkt. No. 25.) The Second Circuit affirmed the dismissal of a case under Rule 41(b) where, “by the time the [District] Court issued its decision; eleven months had passed since [the Plaintiff’s] response to discovery demands was first due.” Heendeniya v. St. Joseph’s Hospital Health Center, 830 F. App’x 354, 358 (2d Cir. 2020). The Court also noted that even “shorter delays could support dismissal.” Id. (citing Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 666 (2d Cir. 1980) (affirming dismissal where plaintiffs took no steps to move case toward trial during a six-month period)). Here, given Plaintiff has indisputably failed to participate in this litigation since at least June 11, 2020, and failed to follow Court directives since January 27, 2021, the Court finds this factor weighs in favor of dismissal. B. Notice “[W]hile a court is ordinarily obligated to afford a special solicitude to pro se litigants, dismissal of a pro se litigant’s action as a sanction may nonetheless be appropriate so long as a warning has been given that noncompliance can result in dismissal.” Koehl v. Bernstein, 740 F.3d 860, 862 (2d Cir. 2014) (citing Valentine v. Museum of Modern Art, 29 F.3d 47, 49 (2d Cir.

1994)) (quotations omitted). Both decisions of this Court and the Local Rules provided notice to Plaintiff that failure to provide an updated address to the Court would result in dismissal. The Orders from October 4, 2019, and December 6, 2019, stated “Plaintiff is . . . required to promptly notify the Clerk’s Office and all parties or their counsel, in writing, of any change in his address; his failure to do so will result in the dismissal of his action.” (Dkt. No. 7 at 14; Dkt. No. 9 at 11.) Plaintiff has engaged in this litigation since these Orders, and there is no reason to believe he was not in receipt of these documents. Local Rules also warned Plaintiff “failure to notify the Court of a change of address . . . may result in the dismissal of any pending action.” L.R. 41.2(b).5 Accordingly, Plaintiff was aware of the consequences of failing to provide an accurate address

and was warned multiple times that dismissal could follow. As such, this factor weighs in favor of dismissal. C. Prejudice to Defendant Prejudice “may be presumed as a matter of law in certain cases, but the issue turns on the degree to which the delay was lengthy and inexcusable.” Drake, 375 F.3d at 256 (citing Lyell Theatre Corp. v. Loews Corp., 682 F.3d 37, 43 (2d Cir. 1982)). Therefore, where a “delay is more moderate or excusable, the need to show actual prejudice is proportionally greater.” Id.

5 A Text Order issued April 9, 2021, also warned Plaintiff that dismissal could result for failure to update his address. (Dkt. No. 35.) However, the copy of this Text Order mailed to Plaintiff’s last known address was returned to the Court. (Dkt. No. 36.) (citing Lyell Theatre Corp., 682 F.3d at 43). “Where a Plaintiff has become inaccessible for months at a time, courts presume prejudice.” Caussade v. U.S., 293 F.R.D. 625, 630 (S.D.N.Y. 2013) (citations omitted). Here, Defendant contends it “will certainly be prejudiced by any further delay, as all deadlines have been stayed and Defendant will be unable to receive discovery from Plaintiff or

take Plaintiff’s deposition.” (Dkt. No. 39-2 at 9.) Here, the lack of excuse for such a long delay in Plaintiff’s accessibility means prejudice is presumed. Accordingly, the Court finds this factor weighs in favor of dismissal. D. Balancing of Interests The Second Circuit has stated “there must be compelling evidence of an extreme effect on court congestion before a litigant’s right to be heard is subrogated to the convenience of the court.” Lucas, 84 F.3d at 535-36. “Nonetheless, fairness to other litigants, whether in the same case or merely in the same court as competitors for scarce judicial resources may warrant a dismissal under Rule 41(b).” Rubin v. Abbott Labs., 319 F.R.D. 118, 121 (S.D.N.Y. 2016)

(citing Chira, 634 F.2d at 668 (internal quotation marks omitted)). The Rubin Court also stated that Courts in that district “have held that calendar congestion outweigh a plaintiff’s opportunity to be heard when the plaintiff has rebuffed opportunities to be heard.” Id. (citations omitted). Defendant states that “the Court’s interest in managing its own docket weighs in favor of dismissal at this juncture.” (Dkt. No. 39-2 at 9.) However, the Defendant does not provide “compelling evidence of an extreme effect on court congestion.” See Lucas, 84 F.3d at 535. In LeSane, the Second Circuit noted the “plaintiff’s failure to prosecute in this case was silent and unobtrusive rather than vexatious and burdensome: plaintiff simply did not make submissions required by the court; he did not swamp the court with irrelevant or obstructionist filings.” LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 210 (2d Cir. 2001); see also Baptiste v. Sommers, 768 F.3d 212 (2d Cir. 2014) (concluding that the Court had no reason to believe that the case at issue strained the docket in any unusual way despite a two-year stall); Mayanduenas v. Bigelow, 849 F. App’x 308, 311 (2d Cir. 2021) (“[Plaintiff’s] failure to prosecute ‘was silent and unobtrusive rather than vexatious and burdensome,’ thus causing only minor court calendar

congestion, if any”) (citations omitted). Here, there is no reason to believe that this case has strained the Court’s docket. Accordingly, this factor is neutral. E. Less Severe Sanctions Finally, this Court must consider whether options less drastic than dismissal could be appropriate. Other possible options include an extension of time or the imposition of a fine. See Anthony v. Lyons, 9:18-CV-0849, 2021 WL 1701754, at *5 (N.D.N.Y. Apr. 12, 2021) (citations omitted). However, Courts “are not required to exhaust possible lesser sanctions before imposing dismissal . . . if such a sanction is appropriate on the overall record.” Southern New

England Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 148 (2d Cir. 2010). In the present case, Defendant asserts “it is not clear what, if any, less drastic sanction would adequately address the circumstances here[,] . . .because Plaintiff’s whereabouts are unknown, and any such order would not reach him[.]” (Dkt. No. 39-2 at 10.) The Court agrees. “Dismissal has been found to be an ‘adequate remedy for failure to prosecute where a plaintiff cannot be contacted, because the plaintiff would be unaware of any lesser sanction that could be imposed.’” Anthony, 2021 WL 1701754, at *5 (quoting Rubin, 319 F.R.D. 122 (finding that “it would not even be possible to impose lesser sanctions” where the plaintiff had “effectively disappeared”)). Here, the Court is unable to determine how to inform Plaintiff of some other sanction. Moreover, the Court notes Plaintiff will retain at least one further opportunity to inform the Court of his whereabouts during the time he has to object to this Report- Recommendation. If Plaintiff contacts the Court during this period of time, Judge Hurd may well find that a less strict sanction is appropriate. However, the Court finds this factor weighs in favor of dismissing this action.

Nevertheless, given his pro se status, “the lesser sanction of dismissal without prejudice (rather than with prejudice) is appropriate in order to strike the appropriate balance between the right to due process and the need to clear the docket and avoid prejudice to defendant by retaining open lawsuits with no activity.” Amoroso v. County of Suffolk, No. 08–CV–826 (JFB)(ETB), 2010 WL 2985864, at *3 (E.D.N.Y. July 21, 2010); see also Barker v. City of New York, No. 19-cv-2582 (JGK), 2020 WL 589048, at *2 (S.D.N.Y. Feb. 5, 2020) (“In light of the minimal prejudice to the defendant and to the Court, and because of the plaintiff’s pro se status, a dismissal without prejudice is warranted”). III. CONCLUSION

After weighing all the necessary factors, and for the reasons stated above, the Court recommends granting Defendant’s motion to dismiss. ACCORDINGLY, it is hereby RECOMMENDED that Defendant’s motion to dismiss (Dkt. No. 39), be GRANTED and Plaintiff’s amended complaint (Dkt. No. 8) be DISMISSED WITHOUT PREJUDICE; and it is further ORDERED that the Clerk provide to Plaintiff a copy of this Order and Report- Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report.® Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

Dated: October 25, 2021 Syracuse, New York ( Lao ; , 4. Thérése Wiley Dancks United States Magistrate Judge

® If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C). 10

2021 WL 1701754 Lyons, Mooney, and Carhart's motion to dismiss for failure to prosecute be granted, and that Plaintiff's claims against Only the Westlaw citation is currently available. unserved defendants C.O. Larry and C.O. Miller be dismissed United States District Court, N.D. New York. without prejudice. Terrence ANTHONY, Plaintiff, v. Michael LYONS, et al., Defendants. II. BACKGROUND 9:18-CV-0849 (GLS/CFH) On July 19, 2018, the Court issued an Order directing | administrative closure and denying plaintiff's in forma Signed 04/12/2021 pauperis (IFP) application. Dkt. No. 4. On July 27, 2018, Plaintiff re-applied to proceed IFP and the case was Attorneys and Law Firms reopened; however, on August 8, 2018, Plaintiff's second IFP Terrence Anthony, 17-A-1847, Montgomery County Jail, P.O. application was denied as incomplete. Dkt. No. 5; Dkt. No. 7; Box 432, Fultonville, New York 12072, Plaintiff pro se. Dkt. No. 8. On January 4, 2019, the Court issued a Decision and Order granting Plaintiff's IFP application and ordering OF COUNSEL: MICHAEL L. GOLDSTEIN, ESQ., dismissal with prejudice of Plaintiff's claims against the State Assistant County Attorney, Albany County Attorney's Office, of New York under the Eleventh Amendment, and dismissed 112 State St., Albany, New York 12207, Attorneys for the remainder of Plaintiff's claims without prejudice. Dkt. Defendants. No. 15 at 2, 10. On January 30, 2019, Plaintiff filed his first amended complaint, and on February 27, 2019, the Court issued a Decision and Order concluding that Plaintiff's Eighth REPORT-RECOMMENDATION AND ORDER Amendment conditions of confinement claims, excessive force claim, and failure to protect claims survived sua sponte CHRISTIAN F. HUMMEL, U.S. MAGISTRATE JUDGE review. Dkt. No. 16; Dkt. No. 17 at 17. On May 17, 2019, Defendants Lyons, Mooney, and Carhart filed their answer to the amended complaint. See Dkt. No. 27. I. INTRODUCTION *1 On July 19, 2018, Plaintiff pro se Terrence Anthony Next, the Court granted a variety of extensions. On June (“Plaintiff”) commenced this action for claims arising out of 19, 2019, all deadlines were extended 60 days at Plaintiff's an incident which occurred on April 11, 2017, while he was request. Dkt. No. 29; Dkt. No. 33. At this time, the Court incarcerated at the Albany County Correctional Facility. Dkt. notified Plaintiff that it would not “indefinitely adjourn” the No. 1 at 1; Dkt. No. 50 at 2. Plaintiff filed a complaint and action and that further extensions “must be accompanied by application to proceed in forma pauperis (“IFP”). Dkt. Nos. a showing of good cause.” Dkt. No. 33. On January 15, 1, 5-6. Plaintiff alleges Eighth Amendment claims relating to: 2020, in response to Plaintiff's third amended complaint, (1) conditions of confinement against Defendants Corrections all deadlines were extended by 60 days. See Dkt. No. 56. Officer (“C.O.”) Miller, C.O. Larry, Michael Lyons, and Chief On March 6, 2020, Plaintiff and counsel for Defendants of Corrections Brian Mooney; (2) excessive force against Lyons, Mooney, and Carhart attended a discovery hearing. defendant William Carhart; and (3) failure to protect against Defendants indicated that they had not received any of Defendants Lyons and Mooney. Dkt. No. 50 at 2-4; see Dkt. Plaintiff's Rule 26 disclosures. Text Min. Entry dated Mar. 6, No. 49 at 2. 2020. Presently pending before the Court is Defendants Lyons, *2 On April 22, 2020, Defendants requested a 60-day Mooney, and Carhart's motion to dismiss for failure to extension of the discovery and dispositive motion deadlines prosecute pursuant to Federal Rule of Civil Procedure (“Fed because Plaintiff had not provided an updated address or R. Civ. P.”) 41(b) and Rule 10.1(c)(2) of the Local Rules contact information following his release from state custody. of the Northern District of New York (“Local Rules”). Dkt. Text Min. Entry dated May 28, 2020; Dkt. No. 75. The Court granted this request on April 23, 2020, and “remind[ed] plaintiff of his duty to provide a current address to the Court and that any failure to attend a deposition, participate in IIL. DISCUSSION discovery, or comply with court orders may result in dismissal of his case.” Dkt. No. 76. On April 27, 2020, Plaintiff notified the Court in writing that his address had changed to the A. Standard of Review Montgomery County Jail; however, the Court's April 23, / 2020 Order, which was sent to this address, was returned as Fed. R. Civ. P 41(b) provides that a court may dismiss an undeliverable, Dkt. No. 77: Dkt. No. 85. action “[i]f the plaintiff fails to prosecute or comply with [the Federal Rules of Civil Procedure] or a court order.” FED. R. On May 28, 2020, Plaintiff notified the Court by telephone CIV. P. 41(b); = Link v. Wabash R.R. Co., 370 U.S. 626, to provide an updated mailing address of 115 Nutgrove Lane, 630 (1963): see Ju Baptiste v, Sommers, 768 F.3d 212, 216 Albany, New York 12202. Dkt. No. 81; Text Notice dated . . (2d Cir. 2014); see also N.D.N.Y. L.R. 41.2(b). As dismissal May 28, 2020. At that time, the clerk advised Plaintiff that he i a. . . . . under Rule 41(b) is a “harsh remedy ... [it] is appropriate only must notify the Court in writing about his change of address. . egg Text Notice dated May 28, 2020. On June 16,2020, the Court 1 &*treme situations.” Lucas v. Miles, 84 F.3d 952, 939 □□ pp 4s . . Cir. 1996) (citation omitted). Furthermore, where the plaintiff noted that Plaintiff did not update the Court regarding his new is proceeding pro se, “courts should be especially hesitant to address in writing, and directed Plaintiff to “notify the Court , of his current address in writing, within fifteen days ofthe date dismiss for procedural deficiencies.” Id.; see also □□ LeSane of this Order.” Text Min. Entry dated June 16, 2020. On July —-v. Hall's See. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001). 13, 2020, the Court's June 16, 2020 Order was re-served to Plaintiff at the Nutgrove Lane address. Dkt. No. 85. Plaintiff | Determining whether an action should be dismissed under failed to update his address in writing within 15 days, as the Rule 41(b) involves the analysis of five factors. The court Court ordered in its June 16, 2020 Order. Additionally, two must examine: deposition notices that Defendants sent to the Nutgrove Lane address were returned as undeliverable. Dkt. No. 91-2; Dkt. No. 91-3. The Court extended the deadlines for discovery and *3 (1) [T]he duration of the plaintiff's dispositive motions to August 24, 2020 and October 26, 2020. failure to comply with the court Dkt. No. 83. It also informed the parties that there would be order, (2) whether plaintiff was on no further extensions of these deadlines. Id. notice that failure to comply would result in dismissal, (3) whether the On August 19, 2020, the Court scheduled a discovery defendants are likely to be prejudiced conference for August 31, 2020, and “advised [Plaintiff] that by further delay in the proceedings, (4) failure to appear at Court Ordered conferences or to abide by a balancing of the court's interest in Court Orders may result in dismissal of his case.” Dkt. No. 87. managing its docket with the plaintiff's Plaintiff failed to appear for this conference. Dkt. No. 88. On interest in receiving a fair chance to be September 2, 2020, the Court extended the discovery deadline heard, and (5) whether the judge has to October 9, 2020, and again notified Plaintiff that “failing to adequately considered a sanction less appear for his deposition, appear at Court ordered conferences drastic than dismissal. and failing to participate in the exchange of discovery can result in ... sanctions, to include dismissal” of his case. Id. This Text Order and the August 19, 2020 Order were served on Lucas, 84 F.3d at 535 (citing Jackson v. City of New York, Plaintiff. Dkt. No. 87; Text Min. Entry dated Sept. 2, 2020. On su October 1, 2020, Plaintiff failed to appear for his deposition. 55 F.3d 71, 74-76 (2d Cir. 1994); © Alvarez v. Simmons Dkt. No. 89 at 1. On October 30, 2020, Defendants Lyons, Market Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir. Mooney, and Carhart filed a Motion to Dismiss for Failure —_1988). “No one factor is dispositive.” *” United States ex. rel to Prosecute. Dkt. No. 91-7; Dkt. No. 90. Plaintiff did not Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004) respond. (citing Peart v. City of New York, 995 F.2d 458, 461 (2d Cir. 1993)).

to prosecute has caused this case to be delayed since April 27, . 2020, the date he last participated in this case. See Dkt. No. B. Analysis . _ . 77. This is a significant delay, given that Plaintiff provided no excuse for his failure to comply with Court orders and 1. Duration of Delay discovery deadlines. As such, this factor weighs in favor of dismissal. There are two inquiries the Court reviews in assessing the duration of delay: “(1) whether the failures to prosecute were those of the plaintiff, and (2) whether those failures were 1" 2. Notice of significant duration.” | Drake, 375 F.3d at 255 (citing Martens v. Thomann, 273 F.3d 159, 180 (2d Cir. 2001). *4 The second factor the Court assesses in determining The initial inquiry asks “whether or not the delay was caused whether to dismiss for failure to prosecute requires that the plaintiff recetve express notice from the Court that further by plaintiff's side as a whole.” | Drake, 375 F.3d at 255. delays would result in dismissal. Lucas, 84 F.3d at 535. In Jackson v. City of New York, the Second Circuit found — The Court's orders of April 23, 2020, August 19, 2020, that “the parties were in constant contact with each other = ang September 2, 2020, all state that Plaintiff's failure to and the judge,” and as such that “the delays [were] as much — ggmply with Court orders and participate in the discovery the defendants’ fault as they were [the plaintiff's].” ps 22 process could lead to the imposition of sanctions, including 71, 75 (2d Cir. 1994). Here, the delays were due to __ the dismissal of his case. Dkt. No. 76; Dkt. No. 87; Dkt. No. Plaintiff's failure to comply with Court orders to serve his 88. All Court orders were served on Plaintiff at the address he Rule 26 disclosures, provide a written address to the Court in had provided to the Court. Id. Plaintiff had received express writing, appear at the August 31, 2020 discovery conference notice from the Court that failure to prosecute his case could as directed by the Court, and appear for his deposition. Dkt. lead to the dismissal of his case. Therefore, this factor weighs No. 60; Dkt. No. 88; Dkt. No. 91-5 at 3:8-9; Dkt. No. 91-6 at ‘in favor of dismissal. 7. As such, Plaintiff caused the delay in this case. Thus, the next question is whether those failures were of 3. Prejudice to Defendants significant duration. = Drake, 375 F.3d at 255. “[T]here is 1 The third factor the Court must review examines whether no “magic number’ ” for the length ofthe delay. Copeland, _the defendants have been prejudiced by the plaintiff's failure 194 F.R.D. at 132. Instead, the inquiry focuses on whether the —g prosecute. See Lucas, 84 F.3d at 535. Prejudice to the plaintiff delayed the case “without excuse” by, for example, defendant can be presumed where the plaintiff's delay is “disregarding the orders of the Court” and missing deadlines. unreasonable; however, “the need to show actual prejudice a, at 132, 134; pu Peart, 992 F.2d at 461. Plaintiff's last is proportionally greater” if the delay is “moderate or involvement in this case was his call to the Court on May _—-&Xcusable.” Lyell Theatre Corp. v. Loews Corp., 682 F.3d 37, 28, 2020. Dkt. No. 81. As Plaintiff failed to follow the Court 43 (2d Cir. 1982) (citing = Messenger v. United States, 231 order to provide the Court and Defendants with a written — £94328, 331 (2d Cir. 1956)). Such prejudice can be presumed notice of his current address, and alleged that he could not _ because “because delay by one party increases the likelihood access an electronic device to appear at a video deposition, —_ that evidence in support of the other party's position will be Defendants had to request extensions of the discovery and _|gst and that discovery and trial will be made more difficult.” dispositive motion deadlines, delaying the matter by another 1" Shannon v, Gen, Elec, Co., 186 F3d 186, 195 Qd Cir 60 days. Dkt. No. 83; see Dkt. No. 82. Plaintiff also failed EO , ° to appear for the August 31, 2020, discovery conference, 1999) (citing = Romandette v. Weetabix Co., 807 F.2d 309, requiring rescheduling to October 9, 2020. Dkt. No. 88; Dkt. 312 (2d Cir. 1986)). No. 91-6 at 3. Here, Plaintiff failed to comply with multiple Court orders Local Rule 41.2(a) states that “the plaintiff's failure to take in the face of warnings that failure to comply would risk action for four ... months shall be presumptive evidence of — dismissal. See Dkt. No. 60; Dkt. No. 88; Dkt. No. 91-5 at lack of prosecution.” N.D.N.Y. L.R. 41.2(a). Plaintiff's failure 3:8-9; Dkt. No. 91-6 at 7. As such, his actions unreasonably

delayed the case, and so prejudice to Defendants can be presumed due to the increased likelihood that relevant 5. Consideration of Lesser Sanctions evidence may be lost. = Shannon, 186 F.3d at 195. Furthermore, this action has been pending since 2018, *5 The final factor the Court reviews in assessing whether concerns an incident that occurred in 2017, and has seen its to dismiss a case for failure to prosecute examines whether discovery deadlines pushed back by several months. See Dkt. the court has adequately considered sanctions less drastic No 1 at 1; Dkt. No 29 at 5-6: Dkt. No. 50 at 2; Dkt. No. 88. than dismissal. Lucas, 84 F.3d at 535. Less drastic responses This passage of time makes evidence “increasingly unlikely include an extension of time or the imposition of a fine. to be available,” which prejudices Defendants. Heendeniya | Drake, 375 F.3d at 257; Spencer _v. Doe, 139 F.3d yv. St. Joseph's Hosp. Health Ctr, 830 FApp’x 354, 358 107, 114 (2d Cir. 1998). However, “district courts are not (2d Cir. 2020) (summary order). Thus, even if prejudice —_ required to exhaust possible lesser sanctions before imposing were not presumed, Defendants have still been prejudiced by dismissal ... if such a sanction is appropriate on the overall Plaintiff's delays, as the amount time that has passed since the vu occurrence of the alleged incident makes it more difficult for record. S. New Eng. Tel. Co. v. Global NAPs Inc. En _Tel. Co. v. Global NAPs Inc., 624 them to access evidence. See Heendeniya, 830 F.App'x at 358: F.3d 123, 148 (2d Cir. 2010). Moreover, dismissal has been □ found to be an “adequate remedy for failure to prosecute Shannon, 186 F.3d at 195. Therefore, this factor weighs in —_—_ where a plaintiff cannot be contacted, because the plaintiff favor of dismissal. would be unaware of any lesser sanction that could be imposed.” Rubin v. Labs., 319 F.R.D. 118, 122 □□□□□□□□□ 2016). 4, Balance Between Calendar Congestion and Due Process Rights Plaintiff has not made any contact with the Court or Defendants since notifying the Court of his changed address The fourth factor the Court assesses in determining whether to by phone on May 28, 2020, and has disregarded multiple dismiss for failure to prosecute requires the Court to balance Court orders. Dkt. No. 81; Dkt. No. 87; Dkt. No. 88. As managing its docket with the plaintiff's interest in recetving — such, imposing a lesser sanction would be ineffective because a fair chance to be heard. Lucas, 84 F.3d at 535. A court Plaintiff's failure to comply with the Court's orders indicates cannot weigh its interest in managing its docket too heavily; that a lesser sanction would not motivate him to participate instead, “compelling evidence of an extreme effect on court in this action. See Rubin, 319 F.R.D. at 122. Further, given congestion” is necessary in order for this factor to weigh that Plaintiff has not provided an updated address, and mail in favor of dismissal. Lucas, 84 F.3d at 535-36; Feurtado sent to the most recent address provided was returned to v. City of New York, 225 F.R.D. 474, 480 (S.D.N.Y. 2004) sender, the Court is unable to establish contact with Plaintiff. (citation omitted). A plaintiff's receipt of “specific notice that | See Flynn v. Ward, 9:15-CV-1028 (BKS/CFH), 2019 WL his case” is in danger of dismissal, and his failure to act on that 2085986, at *2 (N.D.N.Y. May 13, 2019) (noting that lesser notice, is sufficient protection of a plaintiff's right to be heard. sanctions were unlikely to be successful where the plaintiff = Shannon, 186 F.3d at 195. Furthermore, a plaintiff's failure did not update the Court with an address and the Court to “move the case toward trial” subordinates the plaintiff's “currently has no way of contacting [the] Plaintiff ). Even . . . . if the Court were to impose a lesser sanction such as a interest in being heard to a court's interest in managing its □ □ . i fine, it would have to “adequately address the prejudice Altai Com. cae 5. ot ose Oo Cir 1980) Defendants had suffered” to be effective. Drake, 375 F.3d Here, the Court provided Plaintiff with multiple opportunities at 297. A fine ts not likely to be effective in addressing the . . . . . prejudice Defendants suffered from the delay in the case, to be heard, including extending the discovery deadline after oe □ Plaintiff failed to appear for the August 31, 2020 conference. ™* (1) Plaintiff is proceeding TEP and would be unlikely to Dkt No. 87; Dkt. No. 88. Therefore, this factor weighs in favor pay, and (2) a fine does not mitigate the potential difficulty of dismissal. Defendants would face in collecting evidence on an incident that occurred in 2017. See Coss v. Sullivan Cnty. Jail Adm'r, 171 F.R.D. 68, 72-73 (S.D.N.Y. 1997) (holding that “the imposition of monetary sanctions [is not] an adequate penalty” to cure prejudice to the defendant where the plaintiff

is proceeding IFP); Jackson v. United States, 8:17-CV-1157 (MAD/CFH), 2020 WL 109009, at *5 (N.D.N.Y. Jan. 9, 2020) Here, the Court issued three orders extending Plaintiff's time (finding sanctions less than dismissal inappropriate where the to submit an amended complaint properly identifying C.O. plaintiff repeatedly failed to provide updates about obtaining Larry and C.O. Miller, ultimately extending his deadline new counsel, failed to respond to the motion to dismiss to properly identify them until July 24, 2020. Text Min. for failure to prosecute, and failed to attend court-ordered Entry dated Oct. 18, 2019; Text Min. Entry dated Jan. 15, telephone conferences). As such, this final factor also weighs 2020; Text Min. Entry dated June 24, 2020. As Plaintiff in favor of dismissal. Thus, it is recommended that the Court did not properly identify these defendants in response to grant defendants’ motion to dismiss for failure to prosecute these orders, dismissal without prejudice for failure to timely pursuant to Rule 41(b). serve is warranted. Therefore, because more 90 days have passed since Plaintiff filed his third amended complaint on The undersigned concludes that dismissal is also warranted = November 14, 2019, the Court gave plaintiff notice of his duty under Local Rule 10.1(c)(2), which requires parties to notify —_ to identify and serve those Defendants, and service was not the Court of any change in address, and and 41.2(b), which = made within the set time limit, the undersigned recommends allows for the dismissal of an action when a party fails to that Plaintiff's claims against C.O. Larry and C.O. Miller be notify the Court of a change of address. See, e.g., iu Tylicki dismissed without prejudice in accordance with Rule 4(m). v. Ryan, 244 F.R.D. 146, 147 (N.D.N-Y. 2006) (dismissing action due to the plaintiff's failure to comply with the Local Rule's requirement to notify the Court of a change of address). IV. CONCLUSION Accordingly, it is recommended that dismissal be granted pursuant to Rule 41(b) and Local Rule 10.1(c)(2). See, WHEREFORE, for the reasons set forth herein, itis HEREBY e.g., Hicks v. Stermer, 9:10-CV-1177 (LEK/DEP), 2011 WL 3841581, at *1 (N.D.N.Y. Apr. 24, 2011) (discussing that © RECOMMENDED, that Defendants Lyons, Mooney, and dismissal without prejudice, over dismissal with prejudice, Carhart's Motion to Dismiss for Failure to Prosecute (Dkt. pursuant to Rule 41(b) is appropriate where the pro se plaintiff No. 91-6) be GRANTED, and that Plaintiff's complaint be failed to prosecute the action, and is a sanction less severe DISMISSED without prejudice as to Defendants Lyons, than dismissal with prejudice). Mooney, and Carhart for failure to prosecute under Fed. R. Civ. P. 41(b) and Local Rules 10.1(c)(2) and 41.2(b); and it is RECOMMENDED, that Plaintiff's complaint, as set forth C. The Unserved Defendants against unserved Defendants C.O. Miller and Larry be *6 Plaintiff never properly identified or served any DISMISSED without prejudice pursuant to Fed. R. Civ. P. complaint on defendants C.O. Larry or Miller. See Text Min. 4(m); and it is Entry dated June 16, 2020; Dkt. No. 56. Under Fed. R. Civ. P. “if a defendant is not served with 90 days after ORDERED, that the Clerk of the Court serve a copy of the complaint is filed, the court -- on motion or on its own this Report-Recommendation and Order on all parties in after notice to the plaintiff -- must dismiss the action without accordance with the Local Rules. prejudice against that defendant or order that service be made within a specified time,” unless “the plaintiff shows good IT IS SO ORDERED. cause for the failure.” FED. R. CIV. P. 4(m). The Second Circuit has said that “Rule 4 ... is to be construed liberally,” Pursuant to = 28 U.S.C. § 636(b)(1), the parties have and that failure to serve a defendant will lead to dismissal FOURTEEN (14) days within which to file written “unless it appears that proper service may still be obtained.” objections to the foregoing report. Such objections shall be Romandette, 807 F.3d at 311; Grammenos v. Lemos, 457 filed with the Clerk of the Court. FAILURE TO OBJECT F.2d 1067, 1070 (2d Cir. 1972). Moreover, Rule 4(m) gives 10 THIS REPORT WITHIN FOURTEEN “ DAYS the court discretion “to extend the time for service.” Jones WILL PRECLUDE APPELLATE REVIEW. □ Roldan v. Westchester Cty., 182 F. Supp. 3d 134, 144-45 (S.D.NLY. v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing □ small 2016). v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir.

1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. All Citations 72 & 6(a), Slip Copy, 2021 WL 1701754

Footnotes

1 If you are proceeding pro se and are served with this Report-Recommendation & Order by mail, three (3) additional days will be added to the fourteen (14) day period, meaning that you have seventeen (17) days from the date the Report-Recommendation & Order was mailed to you to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Id. § 6(a)(1)(c).

End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works.

and scheduled the final conference for May 20, 2010. 7d.) On 2010 WL 2985864 May 19, 2010, Judge Boyle noted that the parties had failed Only the Westlaw citation is currently available. to file a joint pre-trial order by that date. (Docket Entry □□□□□ Judge Boyle directed plaintiff to file a list of witnesses and This decision was reviewed by West editorial trial exhibits by June 7, 2010 and directed defendant to file staff and not assigned editorial enhancements. _—4 joint pre-trial order by that same date. (/d.) Judge Boyle rescheduled the final conference for June 15, 2010. 7d.) United States District Court, E.D. New York. On May 20, 2010, the defendant filed a letter stating that plaintiff had been released from prison on February 26, 2010 Joseph AMOROSO, Plaintiff, but had not supplied defendant with a forwarding address. Vv. (Docket Entry [32].) Defendant thus requested the Court's COUNTY OF SUFFOLK, Defendant. direction as to how to notify plaintiff of the rescheduled final conference. (/d.) On June 7, 2010, defendant filed the joint No, 08-CV—826 (JFB)(ETB). pre-trial order and also filed a letter request for the Court to | consider an application to dismiss the matter for failure to July 21, 2010. prosecute. (Docket Entry [33].) Judge Boyle held the final Attorneys and Law Firms conference on June 15, 2010. (Docket Entry [35].) Plaintiff did not appear. (/d.) Judge Boyle directed the County attorney Joseph Amoroso, Watertown, NY, pro se. to notify the pro se plaintiff to appear on June 29, 2010. (id.) Defendant served this order on plaintiff on June 15, 2010. (Docket Entry [36].) Plaintiff did not appear at the June ORDER 29, 2010 conference. (Docket Entry [37].) Accordingly, on June 30, 2010, Judge Boyle recommended that the action be JOSEPH F. BIANCO, District Judge. dismissed because of plaintiffs failure to comply with the court's orders and failure to prosecute the case. (Docket Entry 1 Before the Court is a Report and Recommendation from 13) ) judge Boyle directed plaintiff to file objections within Magistrate Judge Boyle recommending that the Court dismiss fourteen days of service of the Report & Recommendation. this case because plaintiff □□□ failed to comply with numerous (Id.) This Court has received no objections to the Report and orders and failed to prosecute the case. Recommendation. Plaintiff filed the complaint in this case on February 26, *2 A district judge may accept, reject, or modify, in 2008. Plaintiff alleges that he was subjected to excessive force whole or in part, the findings and recommendations of the incident to his arrest on August 6, 2007. (See Compl. at 5.) action requests damages for the physical injurieshe Magistrate Judge. See | DeLuca v. Lord, 858 F.Supp. 1330, sustained due to the excessive force, including bruised ribs 1345 (S.D.N.Y.1994); Walker v. Hood, 679 F.Supp. 372, 374 and other contusions. (/d.) On February 29, 2008, plaintiff □ (S-D.N.Y.1988). As to those portions of a report to which no was granted leave to proceed in forma pauperis. (Docket “Specific, written objection” is made, the Court may accept Entry [4].) the findings contained therein, as long as the factual and legal bases supporting the findings are not clearly erroneous. Judge Boyle scheduled an initial conference for March 26, see Fed, R. Civ. P. 72(b); pu Thomas v. Arn, 474 U.S. 140, 2009. (Docket Entry [16].) Thereafter, the parties proceeded — 149. 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Greene v. WCI with discovery, which was certified as complete at a Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y.1997). conference before Judge Boyle on November 17, 2009. (Docket Entry [30].) At the same conference, plaintiff Rule 41(b) authorizes a district court to “dismiss a complaint informed the Court that he expected to bereleased from prison for failure to comply with a court order, treating the in late February 2010. (/d.) Judge Boyle therefore extended . the time for plaintiff to file a list of trial witnesses and exhibits noncompliance as a failure to prosecute. Simmons v. to April 30, 2010. Ud.) Judge Boyle further ordered that the = Abruzzo, 49 F.3d 83, 87 (2d Cir.1995) (citing = Link y. parties should file a jomt pre-trial order by April 30, 2010 Wabash R.R. Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 8

L.Ed.2d 734 (1962)); see Lucas v. Miles, 84 F.3d 532, 535 of Envy. Prot., 16 F.3d 482, 485 (2d Cir.1994); see Peart, 992 (2d Cir.1996) (“[D]ismissal [pursuant to Rule 41(b) ] is a F.2d at 461 (“ ‘[D]ismissal for want of prosecution is a matter harsh remedy and is appropriate only in extreme situations.”); committed to the discretion of the trial judge ..., [and] the Au Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir.2004) (“Rule judge's undoubtedly wide latitude is conditioned by certain [41(b) ] is intended to serve as a rarely employed, but useful, minimal requirements.’ * quoting Merker v. Rice, 649 F.2d tool of judicial administration available to district courts in WL, 113-74 (2d Cir. 1981). managing their specilic cases and general caseload."), see *3 Under the circumstances, the above-referenced factors also Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133 : ? □ os favor dismissal of the instant case. Despite repeated attempts, F.2d 187, 188 (2d Cir.1943) (citing © Blake v. De Vilbiss defendant's counsel has been unable to contact plaintiff since Co., 118 F.2d 346 (6th Cir.1941)); P efior y. Lansing Drop he was released from prison in February 2010. Since that Forge Co., 124 F.2d 440, 444 (6th Cir. 1942) (“The cited rule time, plaintiff has not communicated with the Court at all. [41(b) ] enunciates a well settled [sic] concept of practice “ditionally, Judge Boyle's Report & Recommendation put that a court of equity, in the exercise of sound judicial plaintiff on notice that the action would be dismissed if he discretion, has general authority ... to dismiss acause for want _ failed to file any objections to the report. Morcover, as noted of diligence in prosecution or for failure to comply with a bY Judge Boyle, defendant's counsel reports that he served reasonable order of the court made in the exercise ofa sound _—-P70 Se plaintiff at the address provided by his parole officer— judicial discretion.”). 46 West Broadway, Port Jefferson Station, New York 11776 —and that the mailing was not returned as undeliverable. I Courts have repeatedly found that “[d]ismissal of an action Nonetheless, pro se plaintiff has failed to appear or otherwise is warranted when a litigant, whether represented or instead = communicate with the Court following his release from prison proceeding pro se, fails to comply with legitimate court on February 26, 2010. In short, as currently situated, there directives....” Yulle v. Barkley, No. 9:05-CV-0802, 2007 is no way that this action can proceed because plaintiff has WL2156644, at *2 (N.D.N.Y. July 25, 2007) (citations not participated in the preparation of a joint pre-trial order omitted). A district court contemplating dismissal of a with defendant and because plaintiff has failed to appear and plaintiff's claim for failure to prosecute and/or to comply with — his whereabouts are unknown. Under these circumstances, a court order pursuant to Rule 41(b) must consider: no sanction less than dismissal will alleviate the prejudice to defendant of continuing to keep this action open. Moreover, the Court needs to avoid calendar congestion and ensure an 1) the duration of plaintiff's failures or orderly and expeditious disposition of cases. Therefore, all non-compliance; 2) whether plaintiff the above-referenced factors favor dismissal of the instant had notice that such conduct would case. However, under the circumstances described above, the result in dismissal; 3) whether lesser sanction of dismissal without prejudice (rather than prejudice to the defendant is likely with prejudice) is appropriate in order to strike the appropriate to result; 4) whether the court balance between the right to due process and the need to clear balanced its interest in managing its the docket and avoid prejudice to defendant by retaining open docket against plaintiff's interest in lawsuits with no activity. receiving an opportunity to be heard; and 5) whether the court adequately Thus, having conducted a review of the full record and the considered the efficacy of a sanction applicable law, and having reviewed the R & R for clear error, less draconian than dismissal. the Court adopts the findings and recommendations contained in the R & R in their entirety and dismisses the plaintiff's complaint without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. The Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 Clerk of the Court is directed to close the case. F.3d 52, 63 (2d Cir.2000); see, eg., Lucas, 84 F.3d at 535; Jackson y. City of New York, 22 F.3d 71, 74-76 SO ORDERED. (2d Cir.1994). In deciding whether dismissal is appropriate, “Tg]enerally, no one factor is dispositive.” Nita v. Conn. Dep't

Not Reported in F.Supp.2d, 2010 WL 2985864

Footnotes 1 In considering these factors, courts have routinely found that “it is the plaintiff's responsibility to keep the Court informed of his current address, and failure to do so may justify dismissal for failure to prosecute.” Sims v. Fernandez, No. 03 Civ. 2997(KMW)(DF), 2004 U.S. Dist. LEXIS 6108, at *4 (S.D.N.Y. Mar. 16, 2004) (collecting cases); see, e.g., Parris v. Local 32B–32J, No. 96 Civ. 3604, 1998 U.S. Dist. LEXIS 8672, at *2 n. 1 (S.D.N.Y. June 12, 1998) (“In addition, the plaintiff's failure to notify either the Court or the Postal Service of her change in address indicates that the complaint should be dismissed independently for failure to prosecute.”). However, the failure to provide a current address must not be considered in isolation, but rather in the context of the other above-referenced factors articulated by the Second Circuit. End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. 1995). A district court contemplating dismissal of a plaintiff's 2020 WL589048 claim for failure to prosecute and/or to comply with a court Only the Westlaw citation is currently available. order pursuant to Rule 41(b) must consider: United States District Court, S.D. New York. Akasha Tania BARKER, Plaintiff, 1) the duration of [the] plaintiff's Vv. failures or noncompliance; 2) whether The CITY OF NEW YORK, Defendant. [the] plaintiff had notice that such conduct would result in dismissal; 3) 19-cv-2582 (JGK) whether prejudice to the defendant | is likely to result; 4) [the court's] Signed 02/05/2020 interest in managing its docket against . [the] plaintiff's interest in receiving an Attorneys and Law Firms opportunity to be heard; and 5) ... the Akasha Tania Barker, pro se. efficacy of a sanction less draconian than dismissal. Thomas B. Roberts, Andrew James Rauchberg, The City of New York Law Department, New York, NY, for Defendant. = Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 63 (2d Cir. 2000). “No one factor is dispositive” in MEMORANDUM OPINION AND ORDER determining the proper outcome and the Court must weigh all JOHN G. KOELTL, District Judge: five factors in determining whether dismissal is appropriate □ under Rule 41(b). * United States ex rel. Drake v. Norden 1 The pro_se plaintiff, Akasha Tania Barker, filed this gvs_ 375 F.3d 248, 254 (2d Cir. 2004); see also Avila v. action against the defendant, the City of New York, alleging Comm't of Soe. Sec., No. 15CV2456, 2016 WL 1562944, at violations of Title II of the Americans with Disabilities *3 (S.D.N.Y. Apr. 18, 2016). Act, 42 U.S.C. §§ 12131 et_seq.; the Fair Housing Act, 42 U.S.C. § 3601 et_seq.; and the First and Fourteenth = The factors counsel dismissing the plaintiff's suit for failure Amendments of the United States Constitution. to prosecute. First, nearly four months have elapsed since the filing of the defendant's motion to dismiss. See, ¢.g., Varney v. On October 11, 2019, the defendant filed a motion to Batman, No. 08CV9702, 2012 WL 1080137, at *1 □□□□□□□□□ dismiss the plaintiff's claims pursuant to Federal Rules of | Mar. 30, 2012) (holding a pro se plaintiff's failure to respond Civil Procedure 12(b)(1) and 12(b)(6). Dkt. Nos. 33-36. The to order to show cause for three months warranted dismissal plaintiff had until November 1, 2019 to respond, and the | without prejudice). Second, the plaintiff was warned that defendant had until November 11, 2019, to reply. Dkt. No. failure to respond to the motion to dismiss would be a basis to 31. On December 17, 2019, the Court extended the time for dismiss the case. The Court's December 16, 2019 Order gave the plaintiff to respond to the defendant's motion to dismiss to __ the plaintiff explicit notice that the failure to respond could January 17, 2020. Dkt. No. 40. The Court noted that “[flailure result in dismissal for failure to prosecute. See, ¢.g., Waters to respond to the motion by January 17, 2020, may result in | v-Camacho, 288 F.R.D. 70, 71 (S.D.N.Y. 2013) (dismissing the Court granting the motion by default; the case would be for failure to prosecute where pro se plaintiff repeatedly failed dismissed and the plaintiff will have no trial.” Id. The plaintiff to pay filing fee and had notice that such failure could result has not submitted a response to the motion. in dismissal). Third, any prejudice to the defendant has been minimal. See = LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d Federal Rule of Civil Procedure 41(b) authorizes a district 206, 210 (2d Cir, 2001). Fourth, balancing the plaintiff's due court to “dismiss a complaint for failure to comply with process rights against the Court's need for efficiency, the a court order, treating the noncompliance as a failure to prejudice to the Court has been minimal. See id. (holding that prosecute.” pa Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. the fourth factor cuts against dismissal when the “plaintiff's failure to prosecute ... was silent and unobtrusive rather than

submissions required by the court.”). 1133429, at *2 (S.D.N.Y. Mar. 24, 2017). In light of the minimal prejudice to the defendant and to the Court, and *2 “[U]nder the circumstances described above, the lesser because of the plaintiff's pro se status, a dismissal without sanction of dismissal without prejudice (rather than with prejudice is warranted. prejudice) is appropriate in order to strike the appropriate balance between the right to due process and the need to clear the docket and avoid prejudice to defendant[s] by CONCLUSION retaining open lawsuits with no activity.” Amoroso v. Cnty. of Suffolk, No. 08CV0826, 2010 WL 2985864, at *3 (E.D.N.Y. The plaintiff's case is dismissed without prejudice for failure July 21, 2010). The sanction of dismissal without prejudice to prosecute. The Clerk is directed to close the case. also complies with the fifth factor. Ultimately, “[d]ismissal without prejudice, rather than dismissal with prejudice, is SO ORDERED. proper because courts considering dismissal for failure to prosecute pursuant to Rule 41(b) must consider the efficacy of All Citations lesser sanctions.” Wingate, 2014 WL 3346319, at *1 (citing Reeder v. Hogan, 515 Fed. Appx. 44 (2d Cir. 2013) (summary Slip Copy, 2020 WL 589048 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works.