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granting summary judgment based on failure to exhaust where the record showed that the "plaintiff failed to properly appeal his grievance to the CORC as required by the IGP"
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Civil Action No. 9:18-CV-01097 (MAD/DEP)
04-16-2019
BARRY HAYWOOD, JR., Plaintiff, v. FULLER, Correction Officer; Mid-State Correctional Facility, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: [last known address] BARRY HAYWOOD JR., Pro Se 18-R-1006 Mid-State Correctional Facility P.O. Box 2500 Marcy, NY 13403 FOR DEFENDANTS: HON. LETITIA A. JAMES New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: NICHOLAS LUKE ZAPP, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: [last known address]
BARRY HAYWOOD JR., Pro Se
18-R-1006
Mid-State Correctional Facility
P.O. Box 2500
Marcy, NY 13403 FOR DEFENDANTS: HON. LETITIA A. JAMES
New York State Attorney General
The Capitol
Albany, NY 12224 OF COUNSEL: NICHOLAS LUKE ZAPP, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
ORDER, REPORT, AND RECOMMENDATION
This is a civil rights action brought pursuant to 42 U.S.C. § 1983 by pro se plaintiff Barry Haywood, Jr., a former New York State prison inmate who was released from custody on February 28, 2019, and whose present location is not currently known to the court. In his complaint, plaintiff asserts that three corrections officers employed by the New York State Department of Corrections and Community Supervision ("DOCCS") violated his constitutional rights arising under the Eighth Amendment, based upon an incident that occurred on August 21, 2018 at the prison in which he was confined on that date.
Currently pending before the court is a motion brought by defendants seeking the entry of summary judgment based solely upon the grounds that plaintiff did not administratively exhaust his Eighth Amendment claim prior to bringing suit. For the reasons set forth below, I recommend that defendants' motion for summary judgment be granted. In the event the court disagrees with this recommendation, however, I recommend in the alternative that the complaint be dismissed due to plaintiff's failure to comply with the court's local rules. I. BACKGROUND
Defendants' motion papers properly included a statement of undisputed material facts, as required under Local 7.1(a)(3) of this court. See Dkt. No. 17-2. However, given plaintiff's release from custody two weeks prior to the filing of defendants' motion, it is exceedingly unlikely that plaintiff was made aware of the consequences of his failure to properly respond to defendants' Local Rule 7.1 Statement. See Travelers Indem. Co. of Ill. v. Hunter Fan Co., No. 99-CV-4863, 2002 WL 109567, at *7 (S.D.N.Y. Jan. 28, 2002) (citing Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001)) (indicating that a court has broad discretion whether to overlook a party's failure to comply with its local rules). Accordingly, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in the non-movant's favor, and without regarding to defendants' uncontested statement of material facts. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff is a former New York State prison inmate who, at the times relevant to the claims in this action, was confined to the Mid-State Correctional Facility ("Mid-State"), located in Marcy, New York. See generally Dkt. No. 1. Between August 13, 2018 and August 19, 2018, plaintiff attended a three-day facility orientation at Mid-State where the grievance policies and procedures were explained to him. Dkt. No. 17-3 at 2, 6.
On August 21, 2018, at approximately 1:30 p.m., plaintiff was allegedly assaulted by defendants Robert Hart, Jessica Denny, and Jeff Fuller, three corrections officers assigned to Mid-State. Dkt. No. 1 at 5. According to his complaint, while he was "discussing [d]ue [p]rocess" with defendant Denny, defendants Fuller and Hart threw plaintiff onto a wall. Id. Defendant Fuller then proceeded to kick plaintiff's legs out from beneath him, which caused plaintiff to strike his head against the wall and lose consciousness. Id. When plaintiff regained consciousness, defendant Fuller was kicking his genitals. Id. Defendants then continued to assault plaintiff. Id.
In his complaint, plaintiff seeks recovery compensatory and punitive damages. Dkt. No. 1. at 6.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on September 13, 2018, with the filing of a complaint and accompanying application for leave to proceed in forma pauperis ("IFP"). Dkt. Nos. 1, 2, 3. On September 14, 2018, District Judge Mae A. D'Agostino issued an order administratively closing the action and denying plaintiff's IFP application as incomplete. Dkt. No. 4. In that decision, plaintiff was directed to either file a proper IFP application, signed and certified by an appropriate official at the facility, or pay the full $400.00 filing fee, within thirty days of the date of the order. Id.
Plaintiff filed a second, completed application for IFP status, together with an inmate authorization form, on March 13, 2017. Dkt. No. 5. Judge D'Agostino thereafter reopened the action and issued a decision and order granting plaintiff's IFP application. Dkt. No. 8. In that same decision and order, Judge D'Agostino dismissed certain of plaintiff's claims for failure to state a claim upon which relief may be granted, with the remaining claims surviving the court's initial review pursuant to 28 U.S.C. §§ 1915(e) and 1915A. See generally id. Significantly, in that decision, Judge D'Agostino used instructions to plaintiff, including requiring him " to promptly notify the Clerk's Office and all parties or their counsel , in writing, of any changes in his address; their failure to do so will result in the dismissal of his action. " Id. at 20 (emphasis in original).
On March 15, 2019, prior to answering plaintiff's complaint, defendants filed the pending motion for summary judgment seeking dismissal of plaintiff's complaint in light of his failure to exhaust available administrative remedies. Dkt. No. 17. In a notation in their memorandum of law, defendants observed that plaintiff appeared to have been released from Mid-State on February 28, 2019. Dkt. No. 17-1 at 3. Because plaintiff is presumably unaware of the pending motion, plaintiff has not responded in opposition to it.
While a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure automatically extends the time under which a defendant must file an answer, there is no similar rule governing a defendant's obligation to answer a complaint when he files a pre-answer motion for summary judgment pursuant to Rule 56. Compare Fed. R. Civ. P. 12(a)(4), with Fed. R. Civ. P. 56; see also 10A Alan Wright et al., Federal Practice & Procedure § 2718 (4th ed.). Most courts that have determined that Rule 12(a)(4) operates by analogy to a defendant that has filed a pre-answer summary judgment motion and, therefore, have declined to find a defendant in default by failing to file an answer until after disposition of the motion. See Rashidi v. Albright, 818 F. Supp. 1354, 1356 (D. Nev. 1993) ("Although Rule 12 does not specifically allow for a summary judgment motion to toll the running of the period within which a responsive pleading must be filed, by analogy the language would seem to apply[.]"); but see Poe v. Cristina Copper Mines, Inc., 15 F.R.D. 85, 87 (D. Del. 1953) (finding that the "extension of time to file a responsive pleading until determination of a motion for summary judgment under Rule 56 is not a definite and fixed right but a matter to be granted or denied under Rule 6(b)").
In this instance, defendants requested a stay of the deadline to answer, Dkt. No. 17-1 at 3, which I granted in an exercise of my discretion. Dkt. No. 19. Accordingly, defendants' time to answer has been stayed until fourteen days after a final determination is issued with respect to defendants' motion in the event that the action survives. Dkt. No. 19.
On March 15, 2019, the court attempted to notify plaintiff that his deadline to respond to the pending motion was April 8, 2019. Dkt. No. 18. That notification, however, was returned to the court on March 25, 2019, with the envelope having been marked "Return to Sender - Refused - Unable to Forward[.]" Dkt. No. 20. In addition, a separate text order notification to plaintiff was also returned to the court on March 25, 2019, with the envelope having also been marked "Return to Sender - Refused - Unable to Forward[.]" Dkt. No. 21.
Defendants' motion, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Legal Standard Governing Motions for Summary Judgment
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue—the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co. of Hartford, 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Emp'rs' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Ross v. Blake, 136 S. Ct. 1850, 1856 (2016) (analyzing whether prisoner-plaintiff exhausted his administrative remedies pursuant to the PLRA's exhaustion requirement). Section 1997e(a)'s exhaustion provision is mandatory and applies to all inmate lawsuits regarding the conditions of their confinement. Ross, 136 S. Ct. at 1856; Woodford v. Ngo, 548 U.S. 81, 84 (2006); Porter v. Nussle, 534 U.S. 516, 524, 532 (2002); Williams v. Corr. Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016). In the event a defendant establishes that the inmate-plaintiff failed to fully comply with the administrative process prior to commencing an action in federal court, the plaintiff's complaint is subject to dismissal. See Woodford, 548 U.S. at 93 ("[W]e are persuaded that the PLRA exhaustion requirement requires proper exhaustion."); see also Wilson v. McKenna, 661 F. App'x 750, 752 (2d Cir. 2016). "Proper exhaustion" requires a plaintiff to procedurally exhaust his claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95; accord Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007).
While placing prison officials on notice of a grievance through less formal channels may constitute claim exhaustion " 'in a substantive sense,' " an inmate plaintiff nonetheless must meet the procedural requirement of exhausting his available administrative remedies within the appropriate grievance construct in order to satisfy the PLRA. Macias, 495 F.3d at 43 (quoting Johnson v. Testman, 380 F.3d 691, 697-98 (2d Cir. 2004) (emphasis omitted)).
In New York, the DOCCS has instituted a grievance procedure, designated as the Inmate Grievance Program ("IGP"), for use by prison inmates to lodge complaints regarding the conditions of their confinement. Williams, 829 F.3d at 119. The IGP is comprised of three steps that inmates must satisfy when they have a grievance regarding prison conditions. 7 N.Y.C.R.R. §§ 701.1, 701.5; Williams, 829 F.3d at 119. The IGP requires that an inmate first file a grievance with "the clerk" within twenty-one days of the alleged occurrence giving rise to his complaint. 7 N.Y.C.R.R. § 701.5(a)(1). "The complaint may only be filed at the facility where the inmate is housed even if it pertains to another facility." Id. Representatives of the inmate grievance resolution committee ("IGRC") have up to sixteen days after the grievance is filed to informally resolve the issue. 7 N.Y.C.R.R. § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen days after receipt of the grievance. 7 N.Y.C.R.R. § 701.5(b)(2).
The IGRC is comprised of "two voting inmates, two voting staff members, and a non-voting chairperson." 7 N.Y.C.R.R. § 701.4(a).
A grievant may then appeal the IGRC's decision to the facility's superintendent within seven days after receipt of the IGRC's written decision. 7 N.Y.C.R.R. § 701.5(c). The superintendent must issue a written decision within a certain number of days after receipt of the grievant's appeal. 7 N.Y.C.R.R. § 701.5(c)(3)(i), (ii).
Depending on the type of matter complained of by the inmate, the superintendent has either seven or twenty days after receipt of the appeal to issue a decision. 7 N.Y.C.R.R. § 701.5(c)(3)(i), (ii).
The third and final step of the IGP involves an appeal to the DOCCS Central Office Review Committee ("CORC"), which must be taken within seven days after an inmate receives the superintendent's written decision. 7 N.Y.C.R.R. § 701.5(d)(1)(i). The CORC is required to render a written decision within thirty days of receipt of the appeal. 7 N.Y.C.R.R. § 701.5(d)(2)(i), (ii).
Where an inmate's grievance complains of employee harassment, the grievance is forwarded directly to the superintendent, bypassing the IGRC review. 7 N.Y.C.R.R. § 701.8(b), (c). The superintendent then has twenty-five days from the date of its receipt to render a decision. 7 N.Y.C.R.R. § 701.8(g). An inmate may appeal the superintendent's decision to the CORC within seven days of its receipt. 7 N.Y.C.R.R. § 701.8(h).
As can be seen, at each step of the IGP process, a decision must be rendered within a specified time period. 7 N.Y.C.R.R. § 701.5. Where the IGRC and/or superintendent do not timely respond, an inmate is permitted to appeal "to the next step." 7 N.Y.C.R.R. § 701.6(g)(2). Generally, if a plaintiff fails to follow each of the required three steps of the above-described IGP prior to commencing litigation, he has failed to exhaust his administrative remedies as required under the PLRA. See Ruggerio v. Cty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) ("[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits." (internal quotation marks omitted)).
While the PLRA mandates exhaustion of available administrative remedies, it also "contains its own, textual exception to mandatory exhaustion." Ross, 136 S. Ct. at 1858. More specifically, section 1997e(a) provides that only those administrative remedies that "are available" must first be exhausted. 42 U.S.C. § 1997e(a); see also Ross, 136 S. Ct. at 1858 ("[T]he exhaustion requirement hinges on the availability of administrative remedies." (internal quotation marks and alteration omitted)). In the PLRA context, the Supreme Court has determined that "availability" means that "an inmate is required to exhaust those, but only those, grievance procedures that are capable of use to obtain some relief for the action complained of." Ross, 136 S. Ct. at 1859 (internal quotation marks omitted).
In Ross, the Supreme Court identified three circumstances in which a court could find that internal administrative remedies are not available to prisoners under the PLRA. Ross, 136 S. Ct. at 1859-60. Under the first, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. at 1859. In addition, "an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. The Court explained that, "[i]n this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it." Id. The third scenario in which administrative remedies are deemed unavailable to prisoners is when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.
According to the Second Circuit, "the three circumstances discussed in Ross do not appear to be exhaustive[.]" Williams, 829 F.3d at 123 n.2.
In his complaint, plaintiff alleges that although he filed a grievance, he did not receive a response from the Mid-State's "IGRC's cordinator [sic] or Grievance Central Office in Albany[.]" Dkt. No. 1 at 5. Plaintiff also alleges that the Office of Special Investigations for the DOCCS failed to respond to his "reported incident of abuse." Id. Plaintiff makes no other allegations in his complaint with respect to his endeavor to exhaust his administrative remedies prior to commencing this action. See generally id.
I note, initially, that to the extent plaintiff may suggest that an informal complaint to the Office of Special Investigations constitutes proper exhaustion, such an argument would undoubtedly be misplaced. It is well-established that any informal resolution or relief outside of the administrative procedures does not satisfy exhaustion requirements in the Second Circuit. See, e.g., Macias, 495 F.3d at 43; Day v. Chaplin, 354 F. App'x 472, 474 (2d Cir. 2009) (summary order) (noting that informal letters sent to prison officials "do not conform to the proper administrative remedy procedures"). As a result, any complaint to the Office of Special Investigations for the DOCCS would be insufficient to satisfy plaintiff's exhaustion requirement.
With respect to plaintiff's attempts to exhaust his administrative remedies through the proper channels of the IGP, defendants have submitted a declaration from Christopher G. Tapia, the IGP Supervisor for Mid-State, in support of their motion for summary judgment. Dkt. No. 17-3. According to Mr. Tapia, a search of the records maintained by his office revealed that plaintiff did in fact file a grievance, dated August 23, 2018 and assigned grievance number MS-23650-18, concerning the incident alleged his complaint. Dkt. No. 17-3 at 3, 8. Because plaintiff's grievance involved allegations of employee harassment, it was forwarded directly to the Mid-State's superintendent for review and response. Id. at 3. The superintendent's resulting determination, dated November 29, 2018, was mailed to plaintiff on December 7, 2018. Id. at 3, 10. There is no record of plaintiff having appealed the superintendent's determination to the CORC. Id. at 3; Dkt. No. 17-4 at 4, 6-7.
That grievance contains no allegations with respect to defendant Hart. Dkt. No. 17-3 at 8.
Defendants have also submitted the declaration of Rachel Seguin, the Assistant Director of the DOCCS IGP and custodian of records maintained by the CORC. Dkt. No. 17-4. In response to a letter she received from plaintiff, Ms. Seguin explained the following to plaintiff by letter dated September 6, 2018:
[This] is in response to your August 23, 2018 correspondence.
Contact with the IGP Supervisor at Mid-State Correctional Facility reveals that you have filed one grievance in 2018, to date, and that he has not received any correspondence from you regarding your complaints. It is noted that MS-23650-18, alleging staff misconduct, is currently pending a
Superintendent's response. . . .Id. at 4, 9. Although Ms. Seguin's declaration does not disclose the precise nature of plaintiff's correspondence, it cannot be construed as an effort to appeal to the CORC since at the time of her response, the superintendent had not yet decided plaintiff's grievance. Id.
Directive #4040 provides inmates with an orderly, fair, simple and expeditious method of resolving grievances pursuant to the Correction Law, and makes no provision for an inmate to refer grievances directly to Central Office. Therefore, your documents are being returned to you and we will not retain a copy in this office.
You are advised to address specific grievance concerns directly to the IGP Supervisor and security matters to area supervisory staff for the most expeditious means of resolution.
In light of both Tapia's and Seguin's declarations, I conclude that plaintiff failed to properly appeal his grievance to the CORC as required by the IGP. See, e.g., Ruggiero v. Cty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) ("[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits.)" (internal quotation marks and emphasis omitted)). I note, moreover, that according to the record now before the court, plaintiff prematurely commenced this action on September 13, 2018, inasmuch as the twenty-five day timeframe within which the superintendent had to render a determination on plaintiff's harassment grievance filed on August 23, 2018 had not yet elapsed. See 7 N.Y.C.R.R. § 701.8(f). Accordingly, I recommend that defendants' motion be granted, and that plaintiff's complaint be dismissed based on his failure to exhaust available administrative remedies prior to commencing this action.
C. Plaintiff's Failure to Update His Address
As an additional basis for dismissal of plaintiff's complaint, I offer the following analysis based upon his failure to notify the court of his change of address following his release from prison. For reasons that are self-evident, this court's local rules require that "[a]ll attorneys of record and pro se litigants immediately notify the Court of any change of address." N.D.N.Y. L.R. 10.1(c)(2) (emphasis omitted). As one court has observed with respect to this requirement,
[i]t is neither feasible nor legally required that the clerks of the district courts undertake independently to maintain current addresses on all parties to pending actions. It is incumbent upon litigants to inform the clerk of address changes, for it is manifest that communications between the clerk and the parties or their counsel will be conducted principally by mail. In addition to keeping the clerk informed of any change of address, parties are obliged to make timely status inquiries. Address changes normally would be reflected by those inquiries if made in writing.Dansby v. Albany Cty. Corr. Facility Staff, No. 95-CV-1525, 1996 WL 172699, at *1 (N.D.N.Y. Apr. 10, 1996) (Pooler, J.) (quoting Perkins v. King, No. 84-3310, 1985 U.S. App. LEXIS 31736, at *4 (5th Cir. Mar. 19, 1985)). Plaintiff was expressly informed of this requirement when he was provided with Judge D'Agostino's initial decision and order dated November 27, 2018. Dkt. No. 8 at 20 (" Plaintiff is also required to promptly notify the Clerk's Office and all parties or their counsel , in writing, of any changes in his address; their failure to do so will result in the dismissal of his action ." (emphasis in original)). Despite this pointed warning, plaintiff has been released from custody of the DOCCS, and has failed to contact the court, or defendants' counsel, and provide his new address.
Copies of all unreported decisions have been appended for the convenience of the pro se plaintiff.
Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its discretion, order dismissal of an action based on a plaintiff's failure to prosecute or comply with an order of the court. Fed. R. Civ. P. 41(b); Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014); Rodriguez v. Goord, No. 04-CV-0358, 2007 WL 4246443, at *2 (N.D.N.Y. Nov. 27, 2007) (Scullin, J. adopting report and recommendation by Lowe, M.J.). That discretion should be exercised when necessary to "achieve the orderly and expeditious disposition of cases." Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). In addition, it should be exercised with caution and restraint because dismissal is a particularly harsh remedy, especially when invoked against a pro se plaintiff. Baptiste, 768 F.3d at 216-17.
Although Rule 41(b) grants a defendant leave to move for dismissal based on a plaintiff's failure to prosecute or comply with a court order (rather than grant the court explicit authority to dismiss sua sponte), "courts retain the 'inherent power' to sua sponte 'clear their calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief.' " Rodriguez, 2007 WL 4246443, at *2 (quoting Link, 370 U.S. at 630). Indeed, the local rules of this court recognize this authority and mandate that the court exercise it under certain circumstances. See, e.g., N.D.N.Y. L.R. 41.2(a).
A determination of whether to dismiss an action pursuant to Rule 41(b) is informed by consideration of five specific factors, including (1) the duration of the plaintiff's failure to comply with court orders; (2) whether the plaintiff was on notice that failure to comply would result in dismissal; (3) whether the defendant is 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 a fair chance to be heard; and (5) whether the imposition of sanctions less drastic than dismissal is appropriate. Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (citing Jackson v. City of New York, 22 F.3d 71, 74 (2d Cir. 1994); Alvarez v. Simmons Mkt. Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir. 1988)); see also Shannon v. Gen. Elec. Co., 186 F.3d 186, 193-94 (2d Cir. 1999).
Based upon careful consideration of the foregoing relevant factors, I conclude that dismissal of plaintiff's complaint at this juncture is warranted. The inability of the court to communicate with plaintiff is due solely to his failure to provide the court or opposing counsel with his new address, a failure that dates back to at least February 28, 2019. While only a couple of months have elapsed since that time, and the duration of plaintiff's failure to proceed in this action is therefore relatively modest, its effect on the litigation is nonetheless substantial, and there is no end to plaintiff's inaction in sight. As was previously noted, plaintiff was expressly placed on notice that his failure to provide an adequate address would result in dismissal of his case. Dkt. No. 8 at 20.
Despite plaintiff's awareness of his responsibility, he has failed to provide an updated address to the court. Given plaintiff's manifest disinterest in pursuing his claims in this action, I find that the need to alleviate congestion on the court's docket and defendants' interest in defending against the claims asserted by plaintiff outweigh his right to receive a further opportunity to be heard in this matter. As required, I have considered less-drastic sanctions, but reject them as ineffective. While the court could potentially issue an order reprimanding plaintiff for his conduct, those efforts would be futile, given that such an order would, in all likelihood, never reach plaintiff due to his failure to provide the court with a current address following his release from custody.
IV. SUMMARY, ORDER, AND RECOMMENDATION
Plaintiff's complaint alleges that defendants violated his right under the Eighth Amendment to be free of cruel and unusual punishment when two defendants assaulted plaintiff, while the other defendant failed to prevent the assault. Prior to filing his complaint, however, plaintiff failed to exhaust the internal administrative remedies available to him by the DOCCS IGP. Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 17) be GRANTED, and that plaintiff's complaint (Dkt. No. 1) be DISMISSED in its entirety.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993). It is hereby
If you are proceeding pro se and are served with this order, report, and 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, report, and 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).
ORDERED that the clerk is respectfully directed to modify the court's records to change reference in the court's records to reflect the full names of the remaining defendants as "Robert Hart"; "Jessica Denny"; and "Jeff Fuller"; as set forth in footnote number one; and it is further
ORDERED that the clerk of the court serve a copy of this order, report, and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge Dated: April 16, 2019
Syracuse, New York