Opinion
22-CV-2766 (AT) (JLC)
07-09-2024
ANTOINE “EDDIE” FLOWERS, Plaintiff, v. DONALD SEHL, et al., Defendants.
REPORT AND RECOMMENDATION
JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE.
To the Honorable Analisa Torres, United States District Judge:
Plaintiff Antoine “Eddie” Flowers, who is proceeding pro se, brings this action against defendants Detective Donald Sehl, Detective Fred Dorch, Detective Albert Gonzalez, Detective Michael Best, John Doe #1, John Doe #2, and the City of New York (collectively “defendants”). Defendants have moved to dismiss this action pursuant to Rule 41(b) of the Federal Rules of Civil Procedure on the grounds that Flowers has failed to prosecute his case. For the reasons set forth below, the motion should be granted.
I. BACKGROUND
A. Factual Background
The relevant facts are taken from Flowers' complaint (“Compl.”). Dkt. No. 2. Flowers contends that on December 4, 2020, he was stopped and illegally searched by four undercover police officers in the Bronx. Compl. at 4. He alleges that the officers sexually assaulted him during the search. Id. Following the assault, Flowers claims that he was brought to the 42nd Precinct in the Bronx. Id. at 6. While there, Flowers contends he was chained to something in the bathroom of the “finger print room” and that he was sexually assaulted by an officer again. Id. at 67. During the assault, the police officer purportedly “slammed [Flowers'] face into the wall and said [to him] ‘you're going to . . . admitte [sic] [to] these drugs [sic] and gun charges[.]'” Id. at 7. Next, Flowers alleges he was taken to the hospital by the same officers who sexually assaulted him, and instead of receiving medical assistance for the sexual assault, he was treated for a drug overdose because the officers lied to the doctor about the medical treatment that he needed. Id. at 7-8.
The page numbers cited in Flowers' complaint refer to the page number automatically generated by ECF.
B. Procedural History
On April 4, 2022, Flowers filed his complaint. Dkt. No. 2. On May 5, 2022, the Court granted Flowers' in forma pauperis application and warned him of his “obligation to promptly submit a written notification to the Court if [his] address changes” or else “the Court may dismiss the action[.]” Dkt. No. 4. On May 10, 2022, this case was referred to me for general pretrial supervision. Dkt. No. 7. On December 14, 2022, and December 23, 2022, defendants filed answers. Dkt. Nos. 31, 33. On January 19, 2023, the Court held an initial conference after which Flowers was directed, by order of the Court, to update his address on file and was informed “that this is a continuing obligation whenever his address changes.” Dkt. No. 37.
Following the initial conference, Flowers requested - and the Court granted -the appointment of pro bono counsel to assist him in discovery and settlement. Dkt. Nos. 38, 39. Counsel then filed Notices of Limited Appearance on Flowers' behalf. Dkt. Nos. 41, 42.
Discovery proceeded, and after several extensions, concluded on January 12, 2024. Dkt. No. 57.
The Court subsequently held a settlement conference on February 15, 2024, which Flowers attended. Dkt. No. 60. The conference was unsuccessful. Id. The Court then set a schedule for defendants' summary judgment motion, of which Flowers was aware. Id. (schedule was “discussed following the unsuccessful settlement conference”).
On February 16, 2024, defendants' motion for summary judgment was referred to me. Dkt. No. 64. On May 1, 2024, defendants filed their motion for summary judgment and a memorandum of law in support of their motion, as well as a declaration with accompanying exhibits and a Rule 56.1 statement. Dkt. Nos. 7175.
On May 1, 2024, defendants also submitted a letter to the Court explaining that Flowers had failed to update his current contact information, and as a result, they were unable to serve him with their motion. Dkt. No. 76. At defense counsel's request, Flowers' former pro bono counsel provided defendants with an email address for Flowers and defendants attempted to seek his written consent for electronic service of the motion papers. Id. Defendants submitted an additional letter to the Court on June 7, 2024, reporting that Flowers had not responded to defendants' email and had still not updated his contact information. Dkt. No. 78. Thus, defendants had no way of serving their motion papers on Flowers.
On June 10, 2024, the Court issued an order instructing defendants to file a letter-brief in support of a motion to dismiss for failure to prosecute. Dkt. No. 79. Defendants filed their letter-brief on June 28, 2024. Dkt. No. 81.
II. DISCUSSION
A. Standard of Review
Pro se plaintiffs are treated with leniency, and “courts should be mindful and ‘should be especially hesitant to dismiss for procedural deficiencies where . . . the failure is by a Pro se litigant.'” Pena v. Zazzle Inc., 587 F.Supp.3d 109, 111 (S.D.N.Y. 2022) (quoting Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998)). However, Pro se plaintiffs still have an obligation to pursue their case, and “[a] court should not have to beg the parties before it to litigate the cases they initiate.” McLean v. The City of New York, No. 04-CV-8353 (SAS), 2007 WL 415138, at *4 (S.D.N.Y. Feb. 6, 2007).
The Second Circuit has identified five factors to be considered in determining whether a case should be dismissed for failure to prosecute:
(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 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.Guarniere v. City of New York, No. 23-CV-851, 2024 WL 1710903, at *1 (2d Cir. Apr. 22, 2024) (quoting Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014)) (quotation marks omitted). All factors must be considered because “[n]o single factor is generally dispositive.” Baptiste, 768 F.3d at 217. The Court will consider each factor in turn.
B. Analysis
1. Duration of Flowers' Failure to Comply Supports Dismissal
“The first factor considers (a) ‘whether the failures to prosecute were those of the plaintiff,' and (b) ‘whether these failures were of significant duration.'” Pena, 587 F.Supp.3d at 114 (quoting U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 255 (2d Cir. 2004)). The failure to prosecute is entirely Flowers' fault because he was required to update his mailing address for service of a summary judgment motion that he knew was going to be filed, but failed to do so. See, e.g., Chavis v. City of New York, No. 17-CV-9518 (PAE) (BCM), 2018 WL 6532865, at *3 (S.D.N.Y. Oct. 12, 2018) (failure to comply with discovery obligations for four months and failure to update mailing address resulted in dismissal), adopted by 2018 WL 6528238 (Dec. 11, 2018). Flowers knew the summary judgment motion would be filed because it was discussed with the parties following the unsuccessful settlement conference that he attended. Dkt. No. 60. Next, the duration of Flowers' failure to comply supports dismissal because he has not taken any action in this case since the settlement conference in February 2024, nearly five months ago. See, e.g., Pena, 587 F.Supp.3d at 114 (dismissal supported by more than four months of inaction); Sanchez v. Bracketron, Inc., No. 20-CV-10102 (PGG) (SN), 2021 WL 2440663, at *2 (S.D.N.Y. June 15, 2021) (plaintiff's inaction for more than three months supported dismissal).
2. Flowers was on Notice that Failure to Comply Would Result in Dismissal
The second factor examines whether plaintiff was given notice “that . . . delays would result in dismissal.” Jackson v. City of New York, 22 F.3d 71, 74 (2d Cir. 1994). “Whether [Flowers] actually received the Court's orders is inconsequential, as ‘it remained his duty to diligently pursue his case and to inform this Court's Pro se Office of any change of address.'” Terry v. City of New York, No. 20-CV-81 (ER), 2020 WL 5913409, at *2 (S.D.N.Y. Oct. 6, 2020) (quoting Virola v. Entire GRVC Dep't of Mental Health Hygiene Servs., No. 12-CV-1005 (ER), 2014 WL 793082, at *3 (S.D.N.Y. Feb. 21, 2014)). Here, Flowers was on sufficient notice that inaction would result in dismissal based on the Court's warnings to keep his address updated and its two orders directing defendants to file a letter-brief in support of a dismissal for failure to prosecute. See, e.g., Chavis, 2018 WL 6532865, at *4 (Pro se plaintiff on notice after two orders); Leybinsky v. U.S. Citizenship & Immigration Servs., No. 19-CV-6154 (RPK) (LB), 2020 WL 7295661, at *2 (E.D.N.Y. Dec. 2, 2020) (two warnings sufficient for dismissal of Pro se case).
On May 9, 2022, Chief Judge Swain instructed Flowers that he must update his address whenever it changes and that failure to do so could result in dismissal. Dkt. No. 4. On January 19, 2023, this Court expressly reminded Flowers that updating his address is a continuing obligation. Dkt. No. 37. Flowers' prolonged absence disregards his responsibility to update his official address with the Court, and this supports dismissal. See Wilson v. New York Corrections Dep't, No. 22-CV-8863 (AS) (RWL), 2023 WL 8039361, at *2 (S.D.N.Y. Nov. 20, 2023) (dismissal appropriate for failure to prosecute because Pro se did not update address). Furthermore, throughout May and June 2024, Flowers was put on notice that he needed to update his contact information based on docket filings. Dkt. Nos. 76-80; see, e.g., Robinson v. United States, No. 03-CV-1001 (SCR), 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.”). If Flowers did not see the docket updates putting him on notice, it is his own fault because he has an obligation to pursue his case. See, e.g., Lukensow v. Harley Cars of New York, 124 F.R.D. 64, 66 (S.D.N.Y. 1989) (“any inability to receive actual notice . . . was of plaintiffs' own doing. Nothing prevented them from leaving a forwarding address or otherwise staying in contact with the Court”).
3. Defendants Are Prejudiced by Further Delay
The Second Circuit has found that “[p]rejudice to defendants resulting from unreasonable delay may be presumed[.]” Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). “This is because delay by one party increases the likelihood that evidence in support of the other party's position will be lost and that . . . trial will be made more difficult.” Shannon v. General Electric Co., 186 F.3d 186, 195 (2d Cir. 1999). Defendants have spent time and resources attempting to serve Flowers with their summary judgment motion to no avail. Dkt. Nos. 76, 78. Defendants tried serving Flowers at his official address, they contacted his former pro bono counsel, and they wrote two emails to Flowers asking him to update his address or grant permission for electronic service. Id. Additionally, defendants have spent time researching and submitting a letter-brief in support of a dismissal for failure to prosecute. Dkt. No. 81; see, e.g., Garcia v. Thomas, No. 21-CV-636 (GBD) (BCM), 2023 WL 3354757, at *4 (S.D.N.Y. Apr. 25, 2023) (third factor supported dismissal because defendants wasted limited government resources while case pending due to plaintiff's absence), adopted by 2023 WL 3346789 (May 10, 2023).
4. Balancing the Court's Interest in Managing its Docket and Flowers' Interest in a Fair Chance to be Heard Weighs in Favor of Dismissal
The fourth factor balances “the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). Despite two orders regarding Flowers' failure to prosecute, his absence has persisted, so “there is no reason to believe that he intends to pursue this action any further.” Evans v. City of Yonkers. No. 19-CV-794 (PMH), 2020 WL 7496356, at *3 (S.D.N.Y. Dec. 18, 2020). Therefore, it would be a waste of judicial resources to leave this case open, and it would likely “impose serious costs . . . on parties to other matters before the court who may find their scheduling disrupted or decisions delayed, and on the efficiency with which the district court addresses its business.” Mitchell v. Lyons Pro. Servs., Inc., 708 F.3d 463, 468 (2d Cir. 2013). If the case were left open, it would remain pending until Flowers responded, and yet there is no indication of his willingness to respond. See, e.g., Wilson v. Oxford Health Plans (N.Y.), Inc., No. 01-CV-3417 (MHD), 2002 WL 1770813, at *3 (S.D.N.Y. July 31, 2002) (“failure to dismiss would likely leave the case pending for an indefinite time into the future”). Put simply, he has effectively abandoned his case.
5. A Measure Less Drastic than Dismissal Would be Ineffective
Lastly, the fifth factor supports dismissal because less drastic measures will not have any effect on Flowers or the case. Flowers has repeatedly ignored defendants' attempts to contact him and disregarded court orders, so there is no reason to believe other tactics will be effective. See, e.g., Baysac v. NYC Health & Hospitals Corp., No. 23-CV-10273 (LGS), 2024 WL 2213471, at *2 (S.D.N.Y. May 16, 2024) (“A lesser sanction is unlikely to persuade Plaintiff to participate as he has already been informed that his failure to participate may lead to the dismissal of his action, but he has not responded.”) (quoting Abarca v. Chapter 4 Corp., No. 18-CV-11206 (LGS), 2019 WL 13221420, at *2 (S.D.N.Y. Mar. 21, 2019)); see also Singleton v. City of New York, No. 14-CV-9355 (DLC), 2015 WL 9581781, at *2 (S.D.N.Y. Dec. 30, 2015) (“there is nothing in the record to suggest that a sanction less serious than dismissal will resolve the plaintiff's failure to cooperate”). Furthermore, since Flowers is proceeding in forma pauperis and Pro se, monetary sanctions would be wholly futile and would have no impact on moving this case forward. See, e.g., Neal v. Comm'r of Soc. Sec., No. 18-CV-1936 (VEC) (SN), 2019 WL 3402464, at *2 (S.D.N.Y. June 5, 2019) (“there are no lesser sanctions-such as a monetary fine- practicable here given that Plaintiff is proceeding in forma pauperis and Pro se”), adopted by 2019 WL 2710127 (June 28, 2019).
6. Flowers' Claims Should be Dismissed With Prejudice
Each of the five factors weigh in favor of dismissal, and Flowers' claims are time-barred by the statute of limitations, so this case should be dismissed with prejudice. While the Court would ordinarily recommend dismissal of the claims of a Pro se litigant without prejudice, here, the statute of limitations demands a dismissal with prejudice as a matter of law. See, e.g., Johnson v. Wells Fargo Bank, No. 23-CV-10883 (GHW) (JLC), 2024 WL 3187116, at *6 (S.D.N.Y. June 26, 2024) (recommending dismissal of claim, inter alia, because statute of limitations had expired).
Flowers' complaint is properly construed as alleging claims brought under 42 U.S.C. § 1983, which has a statute of limitations of three years in New York State. See, e.g., Melendez v. Greiner, 477 Fed.Appx. 801, 803 (2d Cir. 2012) (“The applicable statute of limitations for a § 1983 action arising in New York State is three years.”). The date of the alleged incident giving rise to Flowers' claims is December 4, 2020, more than three years ago. Compl. at 4. Thus, if Flowers were to refile his complaint, it would be time-barred and thus futile, so this case should be dismissed with prejudice. See, e.g., Abbas v. Tate, No. 20-CV-3636 (JGK) (JLC), 2023 WL 324432, at *2 n.2 (S.D.N.Y. Jan. 19, 2023) (“‘dismissal without prejudice would not produce a more just result' as any attempt by [plaintiff] to re-file his complaint would be time-barred and thus futile”) (quoting Maersk Line v. Phoenix Agro-Industrial Corp., No. 07-CV-3169 (SJF) (JMA), 2009 WL 1505281, at *5 (E.D.N.Y. May 27, 2009)), adopted by 2023 WL 2632229 (Mar. 23, 2023); cf. Muhammad v. Newton, No. 20-CV-8343 (VEC) (JLC), 2022 WL 619916, at *4 (S.D.N.Y. Mar. 3, 2022) (dismissal without prejudice appropriate because statute of limitations had not run), adopted by 2022 WL 1124849 (Apr. 14, 2022).
III. CONCLUSION
For the reasons stated herein, defendants' motion to dismiss for failure to prosecute should be granted, and Flowers' complaint should be dismissed with prejudice.
Defendants are directed to send this Report and Recommendation to Flowers' email address that was provided by his former pro bono counsel.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres and the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Analisa Torres.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).