Opinion
19-CV-03628 (GBD)(VF)
05-10-2022
FELIPE ADKINS, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.
HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
VALERIE FIGUEREDO UNITED STATES MAGISTRATE JUDGE
Pro se plaintiff Felipe Adkins “Plaintiff” claims that his civil rights were violated by defendants, the City of New York and Security Captain Dominique Harris of the Brooklyn Detention Complex the “BKDC”, while Plaintiff was detained at the BKDC and another facility of the New York City Department of Corrections “DOC” on Rikers Island. After commencing this action, Plaintiff was released from custody. Plaintiff has failed to make himself available for a deposition multiple times and has not otherwise taken steps to prosecute this action. On March 7, 2022, the Court issued an Order to Show Cause as to why Plaintiff's case should not be dismissed for failure to prosecute, which Plaintiff has not answered to date. For the following reasons, this Court respectfully recommends sua sponte dismissal of Plaintiff's case, without prejudice, for failure to prosecute pursuant to Rule 41b of the Federal Rules of Civil Procedure.
BACKGROUND
Plaintiff commenced this action on April 23, 2019, by filing a complaint naming DOC and Harris as defendants. Plaintiff claimed that Defendants violated his civil rights by placing him in isolation for an extended period of time during pretrial detention. See Compl. at 3-5, ECF No. 2. On May 9, 2019, the Court construed the complaint as asserting claims against the City, rather than DOC, and directed the Clerk of Court to amend the caption of the action accordingly. See Order of Service at 2, ECF No. 5. On August 19, 2019, the City moved to dismiss Plaintiff's claims against it. See Mot. to Dismiss, ECF No. 14. On October 2, 2019, defendant Harris filed an answer. See Answer, ECF No. 22. On October 17, 2019, Plaintiff asked the Court for clarity on responding to the City's motion to dismiss, and a case management conference was held on November 1, 2019. See Pl.'s Ltr. at 1, Oct. 17, 2019, ECF No. 26. Plaintiff then filed an opposition to the motion to dismiss, received by the Court on November 13, 2019. See Pl.'s Ltr. at 1, Nov. 13, 2019, ECF No. 30.
On December 3, 2019, the Court received notice from Plaintiff that he had been released from custody and was “residing back at” the address in Brooklyn that is now shown on the Docket. See Pl.'s Ltr. at 1, Dec. 3, 2019, ECF No. 37. On January 3, 2020, the Honorable Debra C. Freeman issued a Report and Recommendation, recommending that Plaintiff's claims against the City be dismissed with leave to replead certain of those claims. See R. & R. at 1-2, ECF No. 39.
On January 23, 2020, Defendants notified the Court that Plaintiff had failed to appear for his scheduled deposition. See Ltr. Mot. for Ext. of Time at 1, Jan. 23, 2020, ECF No. 40. Plaintiff's deposition was subsequently rescheduled for February 21, 2020, and again Plaintiff failed to appear. See Ltr. Mot. to Adjourn Conf. at 1, Feb. 11, 2020, ECF No. 42. On February 24, 2020, defense counsel informed the Court that she had made repeated efforts to contact Plaintiff and had been unable to reach him. See Ltr. Mot. for Ext. of Time at 1, Feb. 24, 2020, ECF No. 44.
On March 3, 2020, the Honorable George B. Daniels issued a Memorandum Decision and Order, adopting Judge Freeman's January 3, 2020 Report and Recommendation, dismissing Plaintiff's claims against the City, and affording Plaintiff leave to amend his Complaint to replead particular claims, although Plaintiff never did so. See Decision and Order at 6, ECF No. 45. That same day, Judge Freeman issued an Order scheduling a case management conference and cautioning Plaintiff that his “continued failure to appear for his deposition, once rescheduled, may also result in his being sanctioned, including, but not limited to, his being ordered to reimburse Defendants for any costs (including court reporter fees) incurred by Defendants in connection with arranging for the deposition.” See Order at 2, Mar. 3, 2020, ECF No. 46.
In addition, the Court warned Plaintiff that “he need[ed] to cooperate in the discovery process, to participate meaningfully in this action, and to keep the Court apprised as to how he may be reached, so that this case can be moved forward.” Id. The Court further explained to Plaintiff that if it “determines that it is unable to supervise this matter effectively, either because of Plaintiff's failures to appear for scheduled proceedings or because of any failure by Plaintiff to update his contact information with the Court upon any change of his residence or phone number, then this Court may recommend to the Honorable George B. Daniels, U.S.D.J., to whom the case is assigned for trial, that Plaintiff's case be dismissed for failure to prosecute.” Id. (emphasis in original).
On March 18, 2020 (at the start of the COVID-19 outbreak in New York City), Plaintiff appeared by telephone for the scheduled conference before Judge Freeman, and Judge Freeman urged the parties to proceed with Plaintiff's deposition by remote means. On May 18, 2020, defense counsel wrote to inform the Court that, “in light of the ongoing public health crisis,” Plaintiff's deposition had not yet been scheduled, adding that counsel had again been unable to 3 reach Plaintiff, but would “continue to make efforts to contact him.” See Status Ltr. at 1, May 18, 2020, ECF No. 52. On May 26, 2020, defense counsel requested that the Court extend the deadline for discovery, in part, because “while [counsel] ha[d] repeatedly attempted to contact Plaintiff Pro se to determine his availability for, and his ability to participate in a remote deposition, to date, [counsel] ha[d] not been able to reach Plaintiff, and no remote deposition[ ] ha[d] been scheduled.” See Ltr. Mot. for Ext. of Time at 1, May 26, 2020, ECF No. 53.
On June 9, 2020, Judge Freeman ordered that Plaintiff's deposition had to be completed by July 16, 2020. See Order at 1-3, June 9, 2020, ECF No. 54. In that Order, Judge Freeman again cautioned Plaintiff regarding the need to keep the Court apprised of his contact information, and expressly warned him that, if he failed to do so, “or if he fail[ed] to cooperated with defense counsel in making arrangements for his deposition to be conducted by July 16, 2020, then the court may recommend to Judge Daniels that this case be dismissed for failure to prosecute.” Id. at 3.
Defense counsel was unable to conduct Plaintiff's deposition. See Status Ltr. at 1, Oct. 1, 2020, ECF No. 55. In a letter to the Court dated October 1, 2020, defense counsel explained that he had repeatedly attempted to contact Plaintiff by telephone in June and July 2020, but had been unable to reach Plaintiff, and had also been unable to leave a voicemail message for Plaintiff because Plaintiff's voicemail was “full.” Id. at 1-2. Counsel further explained that when he finally reached Plaintiff “shortly before July 16,” Plaintiff “confirmed that his mailing address had not changed, but [he] could not explain why he had not responded to [counsel's] written communications, or returned [counsel's] telephone calls.” Id. at 2. Counsel noted that he had again tried to contact Plaintiff on October 1 “to determine his availability for, and ability to participate in, a remote deposition,” but had been unable to reach Plaintiff. Id.
Subsequently, the case remained dormant for more than a year. By Order dated January 24, 2022, the Court directed that “Defendants are to make reasonable efforts to contact Plaintiff, and to provide an updated status report on this case, jointly with Plaintiff, if possible, no later than [February 4, 2022].” See Order, Jan. 24, 2022, ECF No. 56. In response to that Order, defense counsel informed the Court on February 4, 2022, that Plaintiff had never made himself available for a deposition and had not contacted counsel for well over a year. See Status Ltr. at 1, Feb. 2, 2022, ECF No. 57. Counsel also described the nature of his recent efforts to contact Plaintiff, which included (1) sending a letter by overnight mail to Plaintiff's last known address, which advised Plaintiff of the need to submit a joint status report and asked for his response to the letter; and (2) three separate attempts in January and February 2022 to contact Plaintiff by telephone and each time leaving a voicemail message for Plaintiff with counsel's contact information. Id. at 1-2. According to counsel, Plaintiff did not respond to any of these outreach efforts. Id. Defense counsel requested that the Court either dismiss Plaintiff's claims or direct Plaintiff to show cause why the action should not be dismissed for failure to prosecute. Id. at 2.
Counsel noted in his letter to the Court that the tracking information provided by UPS indicated that the letter to Plaintiff had been successfully delivered. See Ltr. at 1-2, ECF No. 57.
On March 7, 2022, Judge Freeman issued an Order to Show Cause, requiring that Plaintiff explain why the Court should not recommend that his Complaint be dismissed, without prejudice, under Federal Rule of Civil Procedure 41(b) for failure to prosecute. See Order at 1, Mar. 7, 2022, ECF No. 58. Plaintiff was directed to explain “any problems he may be having with prosecuting his case, communicating with Defendant's counsel, or appearing for a deposition.” Id. at 8. That response was due, in writing, by April 4, 2022. To date, Plaintiff has not responded to the Order to Show Cause.
DISCUSSION
Federal Rule of Civil Procedure 41(b) states that a defendant may move to dismiss an action or any claim against it “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order.” Fed.R.Civ.P. 41(b). However, the United States Supreme Court has determined that the language of Rule 41 does not restrict the Court's power to act on its own and dismiss an action absent a motion. See Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962); see also Harding v. Goord, 135 Fed.Appx. 488, 488 (2d Cir. 2005) (“Although not explicitly authorized by Rule 41(b), a court may dismiss a claim for failure to prosecute sua sponte.”); White v. Westchester Cnty., No. 19-CV-03604 (KMK), 2020 WL 7323422, at *1 (S.D.N.Y. Dec. 11, 2020) (“[i]t has long been recognized that a district court has the inherent authority to dismiss for failure to prosecute sua sponte.”). Unless the dismissal order states otherwise, a dismissal under Rule 41(b) “operates as an adjudication on the merits.” Link, 370 U.S. at 630.
In considering whether to dismiss a case pursuant to Rule 41(b), courts consider 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). Generally, no one factor is “dispositive,” id., 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). As the Second Circuit has indicated, a “pro se litigant's claim should be dismissed for failure to prosecute ‘only when the circumstances are sufficiently extreme.'” Baptiste, 768 F.3d at 217 (quoting LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001)).
Viewing the record as a whole and considering the factors set forth above, this Court finds that dismissal without prejudice is appropriate. First, Plaintiff has taken no action in this case since appearing for a telephonic conference on March 18, 2020, well over two years ago. See ECF Minute Entry, Mar. 18, 2020. While “there is no time frame specifically identifying the point at which a Rule 41(b) dismissal is warranted . . . durations of five to eight months are usually sufficient,” and a court may consider other factors, such as “the violation of court orders,” and a “failure to respond to motions” and “appear at scheduled conferences,” in assessing “what length of time is appropriate.” Cain v. Simon & Schuster, No. 11-CV-460 (SAS), 2013 WL 1608620, at *3 (S.D.N.Y. Apr. 15, 2013); see also Griffin v. Capra, No. 18-CV-10405 (KMK), 2022 WL 1003908, at *1-2 (S.D.N.Y. Apr. 4, 2022) (dismissing for failure to prosecute where delay was around eight months and plaintiff did not respond to “repeated warnings that failure to amend or prosecute his case could result in dismissal”). The lengthy period of time during which this case has lay dormant, by itself, counsels in favor of dismissal.
In addition to that delay, other factors further weigh in favor of dismissal. Specifically, Plaintiff has failed to appear twice for his scheduled deposition, has consistently failed to respond to repeated efforts by defense counsel to contact him to reschedule the deposition, has ignored the Court's order that he make himself available for a deposition prior to July 16, 2020, and has not responded to the Court's March 7, 2022 Order to Show Cause. See Harding, 135 Fed.Appx. at 488-89 (affirming dismissal of action where Pro se plaintiff repeatedly refused to comply with discovery demands and court orders); Brown v. Pulgarin, No. 17-CV-1677 (VSB) (KHP), 2018 WL 5723120, at *2 (S.D.N.Y. Nov. 1, 2018) (adopting report and recommendation dismissing Pro se plaintiff's complaint for failure to prosecute after he failed to comply with court-ordered deadlines); Peters v. Dep't of Corr. of New York City, 306 F.R.D. 147, 150 (S.D.N.Y. 2015) (dismissing Pro se plaintiff's complaint after he failed to oppose defendant's motion for summary judgment, despite having multiple deadline extensions).
Second, Plaintiff was expressly cautioned by the Court, on two separate occasions, that his Complaint could be subject to dismissal if he failed to appear for a deposition or otherwise take diligent steps to prosecute this action. See ECF Nos. 46, 54. And, on March 7, 2022, the Court again warned Plaintiff in an Order to Show Cause, sent to his last known address, that a failure to respond could result in dismissal of his action. See ECF No. 58. To date, Plaintiff has not responded to the Court's order. Plaintiff was thus sufficiently made aware that his further delay and failure to cooperate could result in dismissal of his action.
Third, Defendants cannot meaningfully defend this action if they cannot depose or even contact Plaintiff. At this point, Plaintiff has not responded to communications from defense counsel for approximately 22 months, since around July 2020, and thus no progress has been made in resolving the pending claims. Of course, with the continued passage of time, the risk that a witness's memory will fade or evidence will become stale increases. The Court thus finds that Defendants have been, and will continue to be, prejudiced by Plaintiff's unreasonable and unexplained delay. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982) (“Prejudice to defendants resulting from unreasonable delay may be presumed”) (citation omitted); see also Dones v. Smalls, No. 17-CV-6038 (JPO), 2018 WL 4211314, at *1 (S.D.N.Y. Sept. 4, 2018) (finding prejudice where the action was “stayed indefinitely due to Plaintiff's absence” and where defendants could not reasonably proceed in the litigation).
With respect to the fourth factor, “it is not an efficient use of the Court's . . . resources to permit this case to languish on the docket in the hope that [Plaintiff] will reappear in the future.” Blake v. Payane, No. 08-CV-0930 (PAC) (PED), 2011 WL 7163172, at *2 (S.D.N.Y. Mar. 11, 2011) (internal quotation marks, citation, and brackets omitted). The Court has a strong interest in managing its docket and Plaintiff has had multiple opportunities to be heard but has remained silent since his last appearance in March 2020, well over two years.
Finally, as to the fifth factor, the Court has considered lesser sanctions but finds that they would not be effective given the Court's inability to communicate with Plaintiff. Moreover, Plaintiff's lack of response to the Court's Order to Show Cause threatening dismissal strongly suggests that a lesser sanction would be futile. See Ruzsa v. Rubenstein & Sendy Attys at Law, 520 F.3d 176, 178 (2d Cir. 2008) (per curiam). And, because Plaintiff is proceeding in forma pauperis (see Order, Apr. 26, 2019, ECF No. 3), a monetary sanction would likely be a harsher remedy. See Dones 2018 WL 4211314, at *1-2. Furthermore, dismissal without prejudice “appropriately takes into account the efficacy of lesser sanction.” Griffin, 2022 WL 1003908 at *2 (citing Waters v. Camacho, 288 F.R.D. 70, 71-72 (S.D.N.Y. 2013)).
In short, because there is no indication that Plaintiff wishes to continue to prosecute this action, the “circumstances are sufficiently extreme” to warrant dismissal of Plaintiff's case. Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996).
CONCLUSION
For the reasons stated above, this Court respectfully recommends that Plaintiff's complaint be dismissed without prejudice for failure to prosecute pursuant to Rule 41(b). The Clerk of Court is directed to mail a copy of this Order to Plaintiff, at the address reflected on the Docket and shown below. If, at any time, defense counsel becomes aware of any other address at which Plaintiff may be reached, then counsel is directed to mail a copy of this Order to Plaintiff at that address, and to file proof of such mailing on the Docket of this action.
NOTICE
Plaintiff shall have seventeen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). Defendants shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure.
If Plaintiff files written objections to this Report and Recommendation, Defendants may respond to Plaintiff's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Alternatively, if Defendants file written objections, Plaintiff may respond to such objections within seventeen days after being served with a copy. Fed.R.Civ.P. 72(b)(2); see also Fed.R.Civ.P. 6(a), (d). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable
George B. Daniels at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Daniels. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).