Opinion
21 Civ. 4720 (PGG) (GWG)
02-03-2023
FERNANDO SANTANA, Plaintiff, v. JOHN DOE, et al., Defendants.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
I. FACTS
Plaintiff Fernando Santana, proceeding pro se and in forma pauperis, brought this case alleging that defendants violated his rights in connection with his May 23, 2021 arrest and subsequent detention by officers of the New York Police Department. See Complaint, filed May 26, 2021 (Docket # 2).
On July 2, 2021, Judge Swain ordered Santana to file an amended complaint. Order to Amend, dated July 2, 2021 (Docket # 4). On December 2, 2021, Santana filed an amended complaint. Amended Complaint, filed Dec. 2, 2021 (Docket # 10). On December 6, 2021, Judge Gardephe issued an order pursuant to Valentin v. Dinkins requiring the New York City Law Department (“City”) to identify the John Doe defendants named in that amended complaint. Order, dated Dec. 6, 2021 (Docket # 12) (“First Valentin Order”). As part of this order, Santana was ordered to file a second amended complaint within 30 days of the City's response. Id. at 2.
On December 7, 2021, an information package which included, inter alia, the First Valentin Order was mailed to Santana at the address listed in his complaint. Mailing Receipt, filed Dec. 7, 2021 (Docket # 13). On January 20, 2022, the package was returned as undeliverable. See Docket. On February 22, 2022, Santana filed a change of address with the Court. Notice of Change of Address, filed Feb. 22, 2022 (Docket # 20) (“Change of Address”).
On February 14, 2022, the City responded to the Valentin order and identified two John Doe defendants as Officer MD Rahman and Officer Alberto Padilla. See Letter from Richard Bahrenburg, filed Feb. 14, 2022 (Docket # 19). Santana did not file a second amended complaint within thirty days of the City's response. On May 2, 2022, the Court, acting sua sponte, extended the deadline for Santana to file a second amended complaint. Order, dated May 2, 2022 (Docket # 22). On June 7, 2022, Santana filed the second amended complaint and added allegations regarding an additional John Doe defendant. See Second Amended Complaint, filed June 7, 2021 (Docket # 23).
Based on the new allegations in the second amended complaint, the Court issued a second Valentin order on June 10, 2022, which directed Santana to file a third amended complaint within thirty days of the City's response. Order, dated June 10, 2022 (Docket # 24) (“Second Valentin Order”).
On June 29, 2022, the City responded and identified an additional John Doe defendant pursuant to the Court's second Valentin order. Letter from Luc Pierre-Louis, filed June 29, 2022 (Docket # 28). Santana did not file a third amended complaint within 30 days of the City's response, however.
On August 8, 2022, the Court sua sponte issued an order extending the deadline for Santana to file a third amended complaint until August 26, 2022. Order, dated Aug. 8, 2022 (Docket # 29) (“TAC Extension”). This Order warned plaintiff that if he failed to timely file a third amended complaint, this case may be dismissed for failure to prosecute under Federal Rule of Civil Procedure 41(b). Id. at 1. Notwithstanding this warning, Santana did not file a third amended complaint by the court-ordered deadline.
On September 14, 2022, the Court issued an order to show cause instructing Santana to “file a letter or memorandum of law by October 5, 2022” explaining why he had not filed a third amended complaint. Order, dated Sept. 14, 2022 (Docket # 30) (“OSC”). This order again warned Santana that failure to comply “may result in his case being dismissed for failure to prosecute under Federal Rule of Civil Procedure 41(b).” Id. at 1.
The deadline to respond to the order to show cause has passed without any filing by the plaintiff. The Docket sheet indicates that all the orders requiring plaintiff to file the third amended complaint, as well as the order requiring plaintiff to show cause why the case should be dismissed (Docket ## 24, 29-30), were mailed to plaintiff and the address he provided, and that none were returned as undeliverable.
II. DISCUSSION
Federal Rule of Civil Procedure 41(b) provides, in relevant part, “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” While the text of Rule 41(b) addresses only the situation in which a defendant moves for dismissal, “it is unquestioned that Rule 41(b) also gives the district court authority to dismiss a plaintiff's case sua sponte for failure to prosecute.” LeSane v. Hall's Sec. Analyst Inc., 239 F.3d 206, 209 (2d Cir. 2001) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (“The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”)).
A district court considering a Rule 41(b) dismissal 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.Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (per curiam) (internal quotation marks omitted) (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)). No single factor is dispositive. Id. (citation omitted).
These factors strongly counsel in favor of dismissal. Santana has taken no action on this case since filing his Second Amended Complaint on June 7, 2022. See Docket. He has failed to respond to three orders from this Court. See Second Valentin Order; TAC Extension; OSC. The latter two Orders warned Santana that “failing to comply with this order may result in his case being dismissed for failure to prosecute under Federal Rule of Civil Procedure 41(b).” OSC, see also TAC Extension (“Santana is warned that if he fails to timely file a third amended complaint, this case may be dismissed for failure to prosecute under Federal Rule of Civil Procedure 41(b).”). In February 2022, Santana filed a change of address, thus demonstrating that he understands the importance of maintaining a current address with the Court. See Change of Address. The defendants in this case are likely to be prejudiced by this delay, as witness memories fade. See Ketter v. United States, 2020 WL 3550708, at *3 (S.D.N.Y. July 1, 2020). The Court has a strong interest in managing its docket and cannot indefinitely wait for Santana to make the appropriate filings. See id. Furthermore, Santana's “failure to comply with the [C]ourt's order or make an attempt to prosecute this case dismisses his right to have the court hear his claim.” George v. Cousins Printing LLC, 2008 WL 4093057, at *2 (S.D.N.Y. Sept. 2, 2008) (citing Feurtado v. City of N.Y., 225 F.R.D. 474, 480 (S.D.N.Y. 2004)). Finally, in light of Santana's failure to comply with this Court's orders, we do not believe any lesser sanction will succeed in altering his behavior and moving this case to a conclusion. See id. The history of this case suggests that Santana will not respond to a lesser sanction. Accordingly, dismissal is appropriate. See Ruzsa v. Rubenstein & Sendy Attys. at Law, 520 F.3d 176, 178 (2d Cir. 2008) (per curiam) (“[I]n light of [plaintiff's] failure to respond to the notice threatening dismissal, it is . . . unclear that a lesser sanction would have proved effective in this case.”) (internal quotation marks omitted); Rubin v. Abbott Lab'ys, 319 F.R.D. 118, 122 (S.D.N.Y. 2016) (“dismissal is the only adequate remedy for failure to prosecute where a plaintiff cannot be contacted, because the plaintiff would be unaware of any lesser sanction”) (collecting cases).
Unless the court specifies otherwise, Rule 41(b) provides that dismissal “operates as an adjudication on the merits.” However, because “dismissal with prejudice is ‘a harsh remedy to be utilized only in extreme situations,'” Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982) (quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972)); see generally LeSane, 239 F.3d at 209 (“pro se plaintiffs should be granted special leniency regarding procedural matters”), dismissal of the complaint should be without prejudice, Coleman v. Doe, 2006 WL 2357846, at *2-4 (E.D.N.Y. Aug. 14, 2006) (dismissal without prejudice where pro se plaintiff could not be reached at the address he provided); Whitaker v. N.Y.C. Police Dep't, 1989 WL 37678, at *1 (S.D.N.Y. Apr. 11, 1989) (same).
III. CONCLUSION
For the foregoing reasons, this case should be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b).
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
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 also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Gardephe. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. 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).