Opinion
19cv09974 (GBD) (DF)
09-18-2020
LEON LUCAS, Plaintiff, v. CYNTHIA BRANN, Defendant.
HONORABLE GEORGE B. DANIELS, U.S.D.J.:
REPORT AND RECOMMENDATION
DEBRA FREEMAN United States Magistrate Judge
This Court having ordered pro se plaintiff Leon Lucas (“Plaintiff”) to show cause by August 31, 2020, why this Court should not recommend that this case be dismissed, for failure to prosecute (see Order To Show Cause, dated July 31, 2020 (Dkt. 18)); and Plaintiff, to this date, having made no submission to the Court in response to the Court's Order To Show Cause; despite more than two weeks having passed since the stated deadline; I respectfully recommend, for these reasons and the reasons stated in the Court's July 31, 2020 Order To Show Cause (a copy of which is attached hereto for reference), that this action be dismissed without prejudice and this case be closed on the Docket of the Court.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, Plaintiff shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, should be filed with the Court in accordance with the attached instructions, and directed to the Honorable George B. Daniels. Any requests for an extension of time for filing objections must be directed to Judge Daniels. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
The Clerk of Court is directed to mail a copy of this Report and Recommendation, together with the attached Order To Show Cause and Notice regarding Pro Se Filings, to Plaintiff at the address listed on the Docket, which is also shown below.
ORDER TO SHOW CAUSE
The Honorable George B. Daniels, U.S.D.J., has referred this pro se Section 1983 action to this Court for general pretrial supervision, as well as to provide a report and recommendation on a pending request by defendant Cynthia Brann (“Defendant”) for the dismissal of the Complaint of plaintiff Leon Lucas (“Plaintiff”) for failure to prosecute. For the reasons that follow, Plaintiff is directed to show cause, no later than August 31, 2020, why this Court should not recommend to Judge Daniels that the action be dismissed, based on Plaintiff's failure to keep the Court apprised of his current contact information.
BACKGROUND
This action was commenced by Plaintiff while he was being held in custody at Rikers Island. By letter dated January 31, 2020, though, counsel for Defendant informed this Court that Plaintiff had been released from custody and was no longer reachable at the address that he had provided to the Court. (See Dkt. 13.)
Accordingly, this Court issued an Order, dated March 3, 2020 (Dkt. 14), directing Plaintiff to provide the Court with an updated address no later than March 13, 2020. In that Order, this Court expressly cautioned Plaintiff that he had an obligation to keep the Court apprised of any changes to his contact information, and that a failure to do so in a timely manner could result in the dismissal of his claims for failure to prosecute. (See id.)
When Plaintiff then failed to comply with this Court's March 3 Order, Defendants' counsel wrote to Judge Daniels on May 21, 2020, asking him either to dismiss Plaintiff's Complaint pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute or, in the alternative, to issue an order to show cause, requiring Plaintiff to state why the action should not be dismissed. (Dkt. 16.) With that May 21 submission, Defendant's counsel submitted evidence showing that mail that counsel had attempted to send to Plaintiff at the only address he had provided (i.e., his original Rikers Island address) had been returned as undeliverable. (See id.)
By Order dated May 28, 2020, Judge Daniels referred Defendant's request for dismissal to this Court for a report and recommendation. (See Dkt. 17.)
DISCUSSION
“[A]ll litigants, including pro ses, have an obligation to comply with court orders.” Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (quoting Minotti v. Lensink, 895 F.2d 100, 103 (2d Cir. 1990) (internal quotation marks omitted)). Moreover, a plaintiff has a general obligation to prosecute her case diligently, and, if she fails to do so, the Court may dismiss the action under Rule 41(b) of the Federal Rules of Civil Procedure, for failure to prosecute. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). “A plaintiff's lack of diligence alone is enough for dismissal.” West v. City of New York, 130 F.R.D. 522, 526 (S.D.N.Y. 1990) (citation omitted). The Court need not wait for a motion to dismiss, see Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962), and is not required to provide notice of the dismissal, see West, 130 F.R.D. at 524. Indeed, because district courts are “necessarily vested” with the control required “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases, ” this Court may even dismiss an action with prejudice, where a plaintiff fails to prosecute her case. Link, 370 U.S. at 630-31.
In deciding whether to dismiss an action for failure to prosecute, the Court should consider: “(1) the duration of plaintiff's failures or non-compliance; (2) whether plaintiff had notice that such conduct would result in dismissal; (3) whether prejudice to the defendant is likely to result; (4) whether the court balanced its interest in managing its docket against plaintiff's interest in receiving an opportunity to be heard; and (5) whether the court adequately considered the efficacy of a sanction less draconian than dismissal.” Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 63 (2d Cir. 2000) (citing Nita v. Conn. Dep't of Envtl. Prot., 16 F.3d 482, 485 (2d Cir. 1994)). “Generally, no one factor is dispositive, ” Williams v. Kelly, No. 11cv9607 (PAC) (KNF), 2014 WL 630654, at *3 (S.D.N.Y. Feb. 18, 2014) (citing Nita, 16 F.3d at 485), and the sanction of dismissal should be considered “in light of the record as a whole, ” United States ex rel. Drake v. Norden Systems, Inc., 375 F.3d 248, 254 (2d Cir. 2004) (citation omitted).
This Court acknowledges that Plaintiff is proceeding in this action pro se, and that, at the time he commenced this action, he may not have had a sound understanding of his obligations. This Court also notes that, although it attempted, by way of its March 3 Order, to give Plaintiff notice of his need to keep the Court informed of any change in his address, that notice may never have reached Plaintiff, given that the Court mailed a copy of the Order to the only address it had for Plaintiff - an address which, by then, was apparently outdated. This Court further notes that the COVID-19 pandemic has made it more difficult for many people to engage in certain activities, and, in some cases, has made it more difficult for pro se litigants to pursue litigation.
Nonetheless, the Court cannot meaningfully supervise this case if Plaintiff, with no explanation, fails to inform the Court as to how he may be contacted. Moreover, without any communication from Plaintiff, the Court cannot ascertain whether special circumstances of some type have hindered his ability to participate in this case, at this time, see Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 666 (2d Cir. 1980) (noting that, if plaintiff had “been frustrated in [his] good faith efforts to comply” with his obligations in the litigation, then his argument that dismissal was too harsh might have been colorable), or if he has consciously decided to forego further participation in court proceedings. Further, there is obvious prejudice to Defendant resulting from her counsel's inability to contact Plaintiff so as to plan how to move forward with discovery in this action.
While dismissal of Plaintiff's claims may therefore be warranted, this Court will consider any explanation that Plaintiff may wish to provide for his failure to comply with this Court's March 3 Order (and, more generally, for his failure to update his contact address on the Court's Docket) before taking the significant step of recommending to Judge Daniels that the action be dismissed for failure to prosecute. Plaintiff is cautioned that, if he fails to respond to this Order To Show Cause - and continues to fail to update the Court with his current address - then the Court will likely recommend dismissal of the action. Moreover, although the dismissal would be without prejudice to reassert his claims, Plaintiff should be aware that, if this action is dismissed, his initial filing would not act to toll the relevant statute of limitations, which would then continue to run on his claims.
Given the severity of the sanction of dismissal, the Court has considered whether any lesser sanction might be sufficient to ensure that Plaintiff satisfies his obligations, but, without having any means to contact Plaintiff, there is little that may be accomplished here through lesser sanctions. Again, this Court stresses that, where a plaintiff cannot be contacted, the Court simply cannot supervise that plaintiff's case. Under the circumstances, if Plaintiff does not avail himself of the opportunity now being provided by the Court to explain his prior noncompliance, and to provide the Court with his current contact information, a dismissal under Rule 41(b) may be the most appropriate result.
CONCLUSION
For the reasons stated above, Plaintiff is directed to show cause, in writing, no later than August 31, 2020, why the Court should not recommend to Judge Daniels that this action be dismissed without prejudice for failure to prosecute. Plaintiff should also provide his current address, together with a telephone number, if any, where he may be reached.
Any response by Plaintiff to this Order should be filed by submitting it to the Court's Pro Se Intake Unit, in accordance with the attached instructions as to how pro se filings may be made during the period of the COVID-19 outbreak.
The Clerk of Court is directed to mail a copy of this Order to Plaintiff, together with a copy of the attached Notice of filing instructions, at the address listed for Plaintiff on the Docket, which is also shown below.
July 31, 2020
SO ORDERED