Opinion
20-CV-8343 (VEC) (JLC)
03-03-2022
ISAIAH MUHAMMAD, Plaintiff, v. C.O. NEWTON, et al., Defendants.
HONORABLE VALERIE E. CAPRONI, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
JAMES L. COTT /UNITED STATES MAGISTRATE JUDGE
Pro se Plaintiff Isaiah Muhammad initiated this action on October 6, 2020, alleging that the defendants had used excessive force against him while he was incarcerated at the Manhattan Detention Complex on Rikers Island. Defendants have now moved to dismiss the action for failure to prosecute under Rule 41 of the Federal Rules of Civil Procedure. For the reasons which follow, I recommend the motion be granted and this case be dismissed without prejudice.
I. BACKGROUND
On October 6, 2020, Muhammad, proceeding Pro se, filed his complaint, alleging that on September 24, 2020 at the Manhattan Detention Complex on Rikers Island, the defendant officers used excessive force against him. Dkt. No. 2. On October 7, 2020, the Court granted Muhammad leave to proceed in forma pauperis and in doing so advised him that “it is Plaintiff's obligation to promptly submit a written notification to the Court if Plaintiff's address changes, and the Court may dismiss the action if Plaintiff fails to do so.” Dkt. No. 4.
On November 24, 2020, the Office of the Corporation Counsel for the City of New York (“Corporation Counsel”) moved to stay this case pending the resolution of a New York City Department of Corrections (“DOC”) investigation into the incident giving rise to Muhammad's complaint. Dkt. No. 12. On November 30, 2020, the Court granted the motion to stay and directed Corporation Counsel to file a status letter with the Court by January 15, 2021, and every 45 days thereafter until the DOC investigation had been completed. Dkt. No. 14.
Status letters were then provided beginning in January 2021 through July 2021. Dkt. Nos. 15-19. By order dated July 19, 2021, the Court directed Corporation Counsel to provide more details in its next status report as to the expected length of time the DOC investigation would take, and indicated that it would not agree to stay the case indefinitely. Dkt. No. 20. However, this order, mailed to Muhammad by the Court to the address on file, was returned as undeliverable.
On August 30, 2021, Corporation Counsel provided its next status report. Dkt. No. 21. Following that report, the Court issued an order on August 31, 2021 advising that at the time of the next status report, it was likely to lift the stay of this case. Dkt. No. 22. This order, mailed to Muhammad by the Court, was also returned as undeliverable.
On September 29, 2021, the Court issued an order directing Muhammad to update his mailing address with the Court no later than October 13, 2021. Dkt. No. 23. In the order, the Court explicitly advised Muhammad that his failure to do so might result in the dismissal of this action for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Id. The Court sent this order to an address in the Bronx that had been provided by Muhammad's parole officer upon inquiry from the Court, which had determined that Muhammad had been released from custody. Id. The Court further directed Corporation Counsel to inform the Court of any additional known mailing address for Muhammad. Id.
This order appears to have been received, as the docket does not reflect otherwise.
Corporation Counsel filed a status report on October 14, 2021, reporting that the DOC investigation into the incident giving rise to the lawsuit was expected to be concluded by the end of October, and as a result the Court issued an order on October 15, 2021 lifting the stay and directing defendants to answer or otherwise respond to the complaint by November 29, 2021. Dkt. Nos. 24, 25. In its October 15 order, the Court again directed Muhammad to update his address no later than November 12, 2021 and stated explicitly: “If plaintiff has not updated his address by that date - and having now been given multiple warnings of the consequences of his failure to do so - then defendants can move to dismiss for failure to prosecute at that juncture.” Dkt. No. 25.
To date, Muhammad has not updated his address despite the repeated admonitions to do so. Accordingly, on November 29, 2021, defendants moved to dismiss for failure to prosecute. Dkt. Nos. 26, 27. Muhammad has not responded to the motion.
II. ANALYSIS
A. Legal Standard
A plaintiff has the duty to diligently advance his case, and if he fails to do so, a court may dismiss the action under Federal Rule of Civil Procedure 41(b) for failure to prosecute. See, e.g., Hardaway v. Agyemong, 572 Fed.Appx. 11, 12 (2d Cir. 2014); United States ex rel. Pervez v. Maimonides Med. Ctr., 415 Fed.Appx. 316, 317 (2d Cir. 2011) (citing Lyell Theater Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982)). Pursuant to Rule 41(b), a court may dismiss an action where a plaintiff “fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order.”
A court generally must be solicitous of Pro se litigants, particularly with respect to procedural issues, see Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996), and protective of their right to be heard, especially when they are in prison. See, e.g., Sonachansinqh v. Lee, No. 10-CV-9410 (JPO) (DCF), 2012 WL 4793873, at *2 (S.D.N.Y. Oct. 9, 2012) (“Given Plaintiff 's position as a pro se litigant in a prison, this Court must be careful to be especially protective of Plaintiff 's right to be heard.”). Yet even unrepresented and incarcerated plaintiffs must comply with court orders and diligently prosecute their cases; their failure to do so may constitute grounds for dismissal. See, e.g., Yadav v. Brookhaven Nat. Lab., 487 Fed.Appx. 671, 672 (2d Cir. 2012); LeSane v. Hall's Sec. Analyst Inc., 239 F.3d 206, 209 (2d Cir. 2001). A Pro se plaintiff 's refusal to appear at court conferences and failure to provide a mailing address may also be grounds for dismissal. See, e.g., Middleton v. United States, No. 10-CV-6057 (JFB) (ETB), 2011 WL 7164452, at *5-7 (E.D.N.Y. June 28, 2011), adopted by, 2012 WL 394559 (Feb. 7, 2012).
When considering whether to dismiss a complaint pursuant to Rule 41(b), a court must weigh 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 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.Kammona v. Midsummer Inv., Ltd., 687 Fed.Appx. 112, 113-14 (2d Cir. 2017) (citing Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014)). However, no single factor is dispositive, and the Court should consider all the facts and circumstances of the case. Baptiste, 768 F.3d at 216; accord U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). Weighing these factors together, the Court finds that Muhammad's complaint should be dismissed without prejudice for his failure to prosecute.
B. Muhammad Has Failed to Prosecute His Case
First, Muhammad has repeatedly failed to comply with court orders. While courts have observed that there is “no ‘magic number'” for the length of noncompliance, Antonios A. Alevizopoulos & Associates, Inc. v. Comcast Int'l Holdings, Inc., No. 99-CV-9311 (SAS), 2000 WL 1677984, at *2 (S.D.N.Y. Nov. 8, 2000) (quoting Copeland v. Rosen, 194 F.R.D. 127, 132 (S.D.N.Y. 2000)), delays of three months and less have been deemed sufficient to warrant dismissal. See, e.g., Moton v. Williams, No. 15-CV-6485 (GBD) (JLC), 2018 WL 2229126, at *3 (S.D.N.Y. May 16, 2018) (failure to attend deposition for more than three months), adopted by, 2018 WL 3384433 (July 11, 2018); Toliver v. Okvist, No. 10-CV-5354 (DAB) (JCF), 2014 WL 2535111, at *2 (S.D.N.Y. June 5, 2014) (noncompliance for five weeks), adopted by, 2015 WL 8543103 (Dec. 10, 2015); Holcombe v. Skupien, No. 14-CV-1448 (PAC) (JLC), 2014 WL 6879077, at *2 (S.D.N.Y. Dec. 5, 2014) (noncompliance for “nearly three months”), adopted by, 2015 WL 524992 (Feb. 9, 2015); Yadav, 487 Fed.Appx. at 672-73 (three months); Dong v. United States, No. 02-CV-7751 (SAS), 2004 WL 385117, at *3 (S.D.N.Y. Mar. 2, 2004) (two months). Here, Muhammad has failed to comply with the Court's orders to update his address for almost five months since first being directed to do so in October 2021 (and arguably should have done so as of July 2021, when the Court first received return mail from him).
Second, through the Court's orders and defendants' motion papers, Muhammad had sufficient notice that his failure to comply with court-ordered deadlines would result in dismissal of his case. See, e.g., Djangmah v. Hiram, No. 14-CV-732 (PKC) (JLC), 2015 WL 5675061, at *3 (S.D.N.Y. Sept. 25, 2015) (“notice provided in multiple court orders” sufficient to inform plaintiff that “failure to abide by court orders could result in the dismissal of his case”), adopted by, 2017 WL 1405751 (Apr. 18, 2017); 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) (defendants' motion papers and court's order deemed sufficient notice); George v. City of New York, No. 12-CV-6365 (PKC) (JLC), 2013 WL 5943206, at *4 (S.D.N.Y. Nov. 6, 2013) (single court order deemed “meaningful, non-technical notice”).
Notably, this is not the first time Muhammad has faced a motion to dismiss for failure to prosecute. In another case in this District, after failing to respond to discovery requests and court orders for more than five months, his complaint was dismissed for failure to prosecute. See Muhammad v. Hernandez, No. 20-CV-3220 (JPO) (SLC), report and recommendation (Aug. 3, 2021) (Dkt. No. 26), adopted by Order dated January 26, 2022 (Dkt. No. 29).
Third, the delay caused by Muhammad's failures to abide by Court directives concerning discovery prejudices defendants. The Second Circuit has observed that “[p]rejudice to defendants resulting from unreasonable delay may be presumed.” Shannon v. General Elec. Co., 186 F.3d 186, 195 (2d Cir. 1999) (quoting Lyell Theater Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982)). Whether defendants have been prejudiced “turns on the degree to which the delay was lengthy and inexcusable.” United States v. Gellerstein, No. 08-CV-2702 (KAM) (JO), 2011 WL 710446, at *6 (E.D.N.Y. Feb. 22, 2011) (quoting U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 256 (2d Cir. 2004)) (quotations omitted). “Thus, where ‘delay is more moderate or excusable, the need to show actual prejudice is proportionally greater.'” Id. (quoting Drake, 375 F.3d at 256). Here, Muhammad's failure to update his address prejudices defendants by hindering their ability to defend their case. See Campbell v. New York City, No. 19-CV-5431 (JMF), 2020 WL 469313, at *1 (S.D.N.Y. Jan. 29, 2020) (“District courts in this Circuit have recognized that ‘the failure to maintain [a current address] with the Court is a ground for failure to prosecute' because ‘the case cannot proceed' without such information.”) (citations omitted); Vazquez v. Davis, No. 12-CV-7630 (ER), 2014 WL 5089457, at *5 (S.D.N.Y. Sept. 19, 2014) (finding prejudice where plaintiff had not provided discovery and discovery period expired); Sanders v. Ramos, No. 12-CV-5302 (GBD) (JCF), 2013 WL 592670, at * 3 (S.D.N.Y. Jan. 24, 2013) (finding prejudice where plaintiff's failure to comply with court's order impeded defendants' investigation of allegations in complaint and prevented case from moving forward), adopted by, 2013 WL 594229 (Feb. 14, 2013). Furthermore, “as the salient events recede[ ] even [further] into the past, ” defendants' ability to defend against the action is prejudiced. Rusza v. Rubenstein & Sendy Att'ys at Law, 520 F.3d 176, 177 (2d Cir. 2008).
Fourth, balancing the effect of calendar congestion against Muhammad's due process rights also weighs in favor of dismissal. Generally, “[t]here 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.” Djangmah, 2015 WL 5675061, at *3 (quoting Lucas, 84 F.3d at 535-36). While Muhammad's delinquency has not been especially lengthy relative to other cases, see, e.g., Sonachansingh v. Lee, No. 10-CV-9410 (JPO) (DCF), 2012 WL 4793873, at *2 (S.D.N.Y. Oct. 9, 2012), “[c]ourts in this district have held that calendar congestion outweighed plaintiff['s] opportunity to be heard when the plaintiff has rebuffed opportunities to be heard and failed to attend judicial conferences.” Djangmah, 2015 WL 5675061, at *3 (quoting St. Prix v. Sirus XM Satellite Radio, No. 11-CV-1506 (CM) (KNF), 2014 WL 405812, at *4 (S.D.N.Y. Jan. 29, 2014)); see also Feurtado v. City of New York, 225 F.R.D. 474, 480 (S.D.N.Y. 2004) (“Because [plaintiff] has made no effort to comply with the Court's directives or to prosecute his action, it would be unfair to the numerous other litigants who await the attention of this Court to permit [plaintiff's] suit to remain on the Court's docket.”).
Fifth, contrary to defendants' motion, dismissal without prejudice is the appropriate remedy. As a threshold matter, “[a] monetary sanction would be futile given [Muhammad's] in forma pauperis status.” Djangmah, 2015 WL 5675061 at *4 (citing Middleton v. United States, No. 10-CV-6057 (JFB) (ETB), 2011 WL 7164452, at *6 (E.D.N.Y. June 28, 2011), adopted by, 2012 WL 394559 (E.D.N.Y. Feb. 7, 2012)). In addition, a further warning would not be appropriate, because the Court already warned Muhammad several times that failure to respond to court orders would result in dismissal of his case for failure to prosecute. Dkt Nos. 4, 23, 25; Vazquez, 2014 WL 5089457, at *5 (“[B]ecause the plaintiff has already been warned that failure to respond would result in dismissal, it is doubtful that further warnings would be any more effective.”). Moreover, dismissal is warranted when a plaintiff's actions prevent defendants from being able to prepare for trial. See Taylor v. New York City Police Dep't, No. 15-CV-1536 (PAC) (JCF), 2017 WL 2610511, at *3 (S.D.N.Y. June 15, 2017) (“Since the defendants cannot adequately prepare for trial . . . [n]o sanction short of dismissal would be appropriate here.”) (citation and quotations omitted), adopted by, 2017 WL 5591634 (Nov. 20, 2017); Toliver v. Okvist, No. 10-CV-5354 (DAB) (JCF), 2014 WL 2535111, at *3 (S.D.N.Y. June 5, 2014) (forgoing lesser sanctions because “defendants have also suffered prejudice to their ability to prepare for trial”), adopted by, 2015 WL 8543103 (Dec. 10, 2015).
Defendants seek dismissal of the complaint pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, which would “operate as an adjudication on the merits.” Def. Mem. at 6.
Should Muhammad decide to re-file this case and pursue his claims, he appears to be within the three-year statute of limitations for Section 1983 claims given that the incident forming the basis of his complaint is alleged to have occurred on September 24, 2020. See Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009) (Section 1983 claims have three-year limitations period). Accordingly, dismissing Muhammad's case without prejudice “allows the Court to dispose of this case, which plaintiff has seemingly abandoned, while allowing plaintiff the opportunity to re-file the suit should he choose to do so in the future.” Coleman v. Doe, No. 05-CV-5849 (JG) (LB), 2006 WL 2357846, at *3 (E.D.N.Y. Aug. 14, 2006); accord Hicks v. Stermer, No. 9:10-CV-1177 (LEK) (DEP), 2011 WL 3841581, at *1 (N.D.N.Y. Aug. 24, 2011) (dismissing complaint without prejudice where statute of limitations had not run); see also Thrall v. Cent. N.Y. Reg'l Transp. Auth., 399 Fed.Appx. 663, 666 (2d Cir. 2010) (remanding to consider dismissal without prejudice in Pro se case); Virola v. Entire GRVC Dep't of Mental Health Hygiene Servs., No. 12-CV-1005 (ER), 2014 WL 793082, at *4 (S.D.N.Y. Feb. 21, 2014) (dismissal without prejudice for Pro se plaintiff whose case had not impacted court's trial calendar); cf. Rudder v. Jimenez, No. 11-CV-3453 (VSB) (JLC), 2014 WL 1349047, at *6 (S.D.N.Y. Apr. 7, 2014) (dismissal without prejudice would be futile where statute of limitations had elapsed), adopted by, 2014 WL 2855012 (S.D.N.Y. June 23, 2014).
III. CONCLUSION
For the foregoing reasons, I recommend that Muhammad's complaint be dismissed without prejudice.
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 shall have fourteen (14) days from service of this Opinion to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Valerie E. Caproni, United States Courthouse, 40 Foley Square, New York, New York. Any requests for an extension of time for filing objections must be directed to Judge Caproni.
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 & Garwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).