Yacub v. Coughlin

105 F.R.D. 152

• Court: District Court, S.D. New York
• Decided: March 15, 1985
• Docket: No. 80 Civ. 7140 (SWK)
• Status: Published

Opinion

MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

The above-captioned action was filed by plaintiff, pro se, on December 16, 1980. Over the next sixteen months, plaintiff filed several motions, served extensive discovery requests, and amended his complaint twice—all pro se. On April 2, 1982, this Court per the Honorable John E. Spriz-zo, appointed counsel to represent plaintiff. The case continued to be actively litigated by counsel until about April, 1983, when plaintiff was released from prison on parole. At that point plaintiff’s appointed counsel began having trouble communicating with his client. The case was reassigned to me on May 24, 1983.

On October 31,1983, plaintiff’s appointed attorney filed a motion to withdraw from the representation of plaintiff on the ground that plaintiff had “persistently refused to cooperate in the preparation of this case or to communicate with me or my associate.” (Affidavit of Kent S. Bernard, Esq., ¶ 2.) The Court was advised that plaintiff had not communicated with counsel for approximately four or five months (id., II5) and had failed to even respond to counsel’s missives—three letters and several phone calls (id., 11116-7). A copy of this motion was served on plaintiff. The Court waited several weeks before deciding this motion to provide plaintiff with an opportunity to object to counsel’s dismissal. No objection, or any other response, was forthcoming from plaintiff. Counsel’s application was granted on January 16, 1984.

In an effort to move this case along, since it had been sitting idly on my docket for several months, I asked my law clerk to contact plaintiff to ascertain whether he intended to proceed with the action. See Appendix A. My law clerk wrote to plaintiff again on May 21, 1984, to determine whether he intended to proceed. See Appendix B. Plaintiff did not respond to either letter.

In a final effort to move this case along, I scheduled a pretrial conference to be attended by plaintiff and counsel for defendants. See Appendixes C, D. The pretrial conference was held, as scheduled, on December 7, 1984. Plaintiff did not attend this conference.

I did not take any action at that time to allow plaintiff an opportunity to explain his absence from the conference. In the three months that have elapsed since that conference, however, plaintiff has not contacted the court for any purpose.

Plaintiff’s prosecution of this action, as exhibited by the spate of pro se activity at the commencement of the action and the consistent progress by counsel thereafter, has ended. In light of plaintiff’s total failure to pursue his action for the past twenty-one months (the entire time that it has been before me), his repeated failure to respond to his own counsel’s missives, his repeated failure to respond to letters from the Court, and his failure to attend the pretrial conference scheduled in this case, the Court assumes that plaintiff does not wish to proceed any longer. The Court, therefore, has no choice but to dismiss his complaint with prejudice for want of prosecution. See Screen v. New York City Dep’t of Fin., 100 F.R.D. 460 (S.D.N.Y. 1984); see also Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (action dismissed for plaintiff’s failure to appear at pretrial conference); Wisdom v. Texas Co., 27 F.Supp. 992 (N.D.Ala. 1939) (plaintiff’s failure to appear at pretrial conference constituted failure to prosecute; action dismissed). Judge Conner’s comments in Screen are particularly appropriate here:

Throughout the ... period this action has been pending before me, plaintiff has repeatedly ignored both the general written instructions of the Court and specific directives in this case, and has exhibited no interest whatever in proceeding to trial on [his] claim.

100 F.R.D. at 461-62. The Court cannot permit this litigant, or any litigant, to abuse its scarce resources while many others, desirous and deserving of relief, must patiently await their turn. Accordingly, the complaint is dismissed with prejudice.

SO ORDERED.

APPENDIX A

UNITED STATES DISTRICT COURT

UNITED STATES COURTHOUSE

NEW YORK. N.Y. 10007

CHAMBERS OF SHIRLEY WOHL KRAM

UNITED STATES DISTRICT JUDGE

January 20, 1984

Mr. Yusuf Jacub

2819 Morris Avenue, Apt. #1A

Bronx, New York 10468

Re: Yacub v. Coughlin, et al. 80 Civ 7140 (SWK)

Deaf Mr. Yacub:

As you know, your case is currently pending before Judge Shirley Wohl Kram. I am enclosing a copy of an Order signed by Judge Kram permitting Mr. Bernard and Mr. Chang to withdraw as your attorneys in this case. You are now responsible for the progress of your case.

Would you please advise the Court whether you intend to proceed with this action? It has been many months since anything was done in your case, and the Court wants to have this case ready for trial soon.

If you have any questions, please do not hesitate to contact me.

Sincerely,

WILLIAM A. GROLL

Law Clerk

cc: Raymond J. Foley, Esq.

Assistant Attorney General

Two World Trade Center

New York, New York 10047

Mr. Yusuf Yacub

re: Yacub v. Coughlin, et al„, 80 Civ,. 7140 (SWK)

Dear Mr. Yacub:

Several months ago, I wrote to you requesting that you advise the Court whether you intend to proceed with your action. To date, we have not received any response to that letter. In the event that you did not receive my prior letter, I am enclosing a copy of it with this letter.

Judge Kram has asked me to contact you once again to find out if you intend to proceed with this action. If you do not wish to proceed, Judge Kram will dismiss the action. If, on the other hand, you wish to proceed, you should contact us immediately so that we can schedule a conference and begin again to move this case toward trial.

If you have any questions, please do not hesitate to contact me. We await your response.

APPENDIX C

September 18, 1984

Mr. Yusuf Jacub

Raymond J. Foley, Esq.

Re: Yacub v: Couqh'lin,' et al.

(80 Civ. 7140)

•Dear Sirs:

Please be advised that you are to appear before Judge Kram for a pretrial conference on November 16 at 10:30 a.m. in courtroom 318.

Cherstin M. Hamel

Courtroom Deputy

cc: Mr. Raymond Burghardt, Clerk

APPENDIX D

October 10, 1984

UNITED STATES OISTRICT JUDGE

2819 Morris Avenue

Aprt. #1A

Re: Yacub v. Coughlin, et al,

80 Civ. 7140

Dear Sirs:

Please be advised that the conference originally scheduled for November 16 at 10:30 a.m. has been changed to December 7 at 10;30 a.m. in courtroom 402.

cc: Mr. Raymond F. Burghardt, Clerk