Opinion
9:21-cv-00120 (MAD/TWD)
04-20-2023
MICHAEL DELGADO, Plaintiff, v. C.O. DELVIN, C.O. LAWFER, and C.O. CABRERA, Defendants.
MICHAEL DELGADO Plaintiff, Pro Se HON. LETITIA JAMES BRITTANY M. HANER, ESQ. Attorney General for the State of New York Assistant Attorney General Counsel for Defendant The Capitol
MICHAEL DELGADO Plaintiff, Pro Se
HON. LETITIA JAMES BRITTANY M. HANER, ESQ. Attorney General for the State of New York Assistant Attorney General Counsel for Defendant The Capitol
REPORT-RECOMMENDATION AND ORDER
Therese Wiley Dancks United States Magistrate Judge.
This matter has been referred for a Report and Recommendation by the Hon. Mae A. D'Agostino, U.S. District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Pending before the Court is Defendants' unopposed letter motion to dismiss Plaintiff's complaint for failure to prosecute. (Dkt. No. 49.) For the reasons set forth below, the Court recommends granting Defendants' motion.
I. BACKGROUND
Pro se Plaintiff Michael Delgado, whose address is not currently known to the Court, commenced this action by filing a complaint pursuant to 42 U.S.C. § 1983 in the Western District of New York (“Western District”) in April 2020, together with an application to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2.) In the complaint, Plaintiff asserts claims for the violation of his constitutional rights arising out of his confinement in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”) at Elmira Correctional Facility (“Elmira C.F.”) and Clinton Correctional Facility (“Clinton C.F.”). (See generally Dkt. No. 1.) At the time he filed the complaint, Plaintiff was incarcerated at Attica Correctional Facility (“Attica C.F.”). See id. at 1.
By Decision and Order filed on February 1, 2021, Western District Judge Elizabeth A. Wolford granted Plaintiff's IFP application and severed and transferred the portion of Plaintiff's claims regarding events that occurred at Clinton C.F. to the Northern District of New York. (Dkt. No. 4.) The Western District retained jurisdiction over the claims that arose at Elmira C.F. Id.
On March 15, 2021, the Court reviewed the sufficiency of the complaint in accordance with 28 U.S.C. §§ 1915(e) and 1915A. (Dkt. No. 6.) On the basis of that review, the Court found the following claims required a response: (1) Fourth Amendment claims against Doe 1, Doe 2, and Sgt. Doe; (2) Eighth Amendment excessive force and failure to intervene claims against Lawfer and Cabrera; (3) Eighth Amendment conditions of confinement claim against Cabrera; and (4) First Amendment retaliation claim against Devlin. (Dkt. No. 6.) Corrections Officers Lawfer, Cabrera, and Devlin (“together, “Defendants”), answered the complaint on June 4, 2021. (Dkt. No. 19.)
On June 7, 2021, the Court issued a mandatory pretrial discovery and scheduling order. (Dkt. No. 20.) On July 19, 2021, Plaintiff filed a letter advising of his transfer to Fishkill Correctional Facility (“Fishkill C.F.”). (Dkt. No. 24.) Subsequently, Plaintiff filed his third and fourth requests for appointment of counsel, which were denied without prejudice. (See Dkt. Nos. 26, 28, 33, 35.) In October of 2022, Defendants requested and received a final extension of the dispositive motion deadline. (Dkt. Nos. 38, 39.)
On October 25, 2022, Defendants filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 40.) Plaintiff's response deadline was set for November 15, 2022. (Dkt. No. 41.)
However, beginning on October 31, 2022, mail which was sent to Plaintiff at Fishkill C.F. from the Court and Defendants was returned as deliverable and marked released. (See Dkt. No. 42, 43, 44.) Accordingly, on December 7, 2022, the Court issued the following Text Order:
Court has reviewed docket and defendants' status report (Dkt. No. 43) which the Court also considers a request for assistance in serving plaintiff with the pending summary judgment motion (Dkt. No. 40). It appears plaintiff has been released from incarceration and mail to plaintiff from the Court has been returned. (See Dkt. Nos. 43, 44.) Therefore, the response time to the motion for summary judgment is held in abeyance at this time. Plaintiff must notify the Court of his new address within thirty (30) days of the date of this Text Order. Plaintiff's failure to update his address may be grounds for sanctions, including but not limited to a recommendation to dismiss the action for failure to prosecute and failure to follow Court orders and directives. The Clerk is directed to send this Text order to the last known address for the plaintiff. Counsel for defendants is to file a status report with the Court by 1/27/2023 regarding any contact from plaintiff or information about plaintiff's location.(Dkt. No. 45.) On January 26, 2023, Defendants provided the Court with a status update indicting counsel attempted to serve Plaintiff by postal mail with the summary judgment motions papers on October 31, 2022, at Fishkill C.F., his address of file, but it was returned as undeliverable. (Dkt. No. 46.) Counsel noted Plaintiff was released from incarceration on September 20, 2022, and she had not had any contact with Plaintiff since. Id.; see also https://nysdoccslookup.doccs.ny.gov/ (indicating Plaintiff (DIN 07A3535) was released from DOCCS custody to parole on September 20, 2022) (last visited Apr. 19, 2023).
On January 27, 2023, the Court issued the following Text Order:
The court reviewed defendants' status report (Dkt. No. 46) regarding any contact with Plaintiff. It appears Plaintiff was released from incarceration on 9/20/2022 and mail to him has been returned. (Dkt. Nos. 43, 44.) Court also directed him to notify the Court of his new address. (Dkt. No. 45.) He has not contacted the Court or defendants' counsel to properly make notification of a change of address as required by Court Rules. Court will provide plaintiff with one final opportunity to show the Court he is interested in pursuing this action. It is hereby ORDERED that on or before 2/28/2023, Plaintiff shall provide his current address and telephone number to the Court and show good cause as to why the Court should not recommend that this action be dismissed for failure to prosecute and failure to follow Court orders and directives.(Dkt. No. 47.) The Text Order was sent to Plaintiff via regular mail at his last known address, Fishkill C.F., but it was returned as undeliverable. (See Dkt. Nos. 47, 48.)
On March 7, 2023, Defendants filed the instant letter motion to dismiss the action for failure to prosecute. (Dkt. No. 49.) The Court ordered Plaintiff to respond to the motion by March 28, 2023. (Dkt. No. 50.) The Text Order was sent to Plaintiff via regular mail at his last known address, Fishkill C.F., but it was also returned as undeliverable. (See Dkt. No. 50, 51.) To date, Plaintiff has not provided his current address and telephone number to the Court, nor has he responded to Defendants' motion to dismiss.
II. DISCUSSION
Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its discretion, dismiss an action based upon the failure of a plaintiff to prosecute the case, or to comply with the procedural rules or orders of the court. Fed.R.Civ.P. 41(b); see Link v. Wabash R.R. Co., 370 U.S. 626 (1962); see also Tylicki v. Ryan, 244 F.R.D. 146, 147 (N.D.N.Y. 2006). This power to dismiss may be exercised when necessary to achieve orderly and expeditious disposition of cases. See Freeman v. Lundrigan, No. 95-CV-1190, 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22, 1996).
Determining whether an action should be dismissed under Rule 41(b) involves the analysis of five factors:
(1) the duration of the plaintiff's failure to comply with the court order, (2) whether [the] 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.Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (citations omitted). No singular factor is dispositive. Nita v. Connecticut Dep't of Environmental Protection, 16 F.3d 482, 485 (2d Cir.1994). “When imposed, the sanction of dismissal ‘operates as an adjudication upon the merits,'but may be without prejudice if so specified by the court imposing it.” Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982) (quoting Fed.R.Civ.P. 41(b)). The Court addresses these factors in turn.
As to the duration of Plaintiff's failure to comply, the Court notes Local Rule 41.2(a) of “the plaintiff's failure to take action for four (4) months shall be presumptive evidence of lack of prosecution.” L.R. 41.2(a). Upon review of the docket, Plaintiff has failed to communicate as directed with the Court since his release from incarceration on September 20, 2022, seven months ago. Courts have repeatedly determined that a plaintiff's failure to comply with court orders for several months weighs in favor of dismissal. See Mayer v. Clinton Cty., No. 9:17-CV-905 (GLS/CFH), 2020 WL 5536800, at *5 (N.D.N.Y. Aug. 7, 2020) (citations omitted) (collecting cases supporting dismissal where the plaintiff did not appear or communicate with a court for four, five, or “more than six months[.]”), report and recommendation adopted sub nom. Mayer v. Liberty, 2020 WL 5531543 (N.D.N.Y. Sept. 15, 2020). Thus, the first factor weighs in favor of dismissal.
Second, as to whether Plaintiff was on notice, the Court warned Plaintiff the failure to notify the Court and Defendants of any change in his address would result in dismissal of his case. (See Dkt. No. 20.) Plaintiff demonstrated that he understood this requirement and its importance when he updated his address with the Court on July 19, 2021. (See Dkt. No. 24.) Additionally, as detailed above, Plaintiff failed to contact the Court or file appropriate documents after being directed to do so by the Court. (See Dkt. Nos. 45, 47, 50.) Plaintiff was warned that his failure to do so would constitute ground for a recommendation of dismissal. Thus, the second factor weighs in favor of dismissal.
The third factor is also satisfied as further delay is likely to prejudice Defendants. Plaintiff commenced this action three years ago and the events giving rise to Plaintiff's claims allegedly occurred in 2017. (See Dkt. No. 1.) Defendants have filed a motion for summary judgment on October 25, 2022, but Plaintiff's response deadline has been held in abeyance by the Court since December 7, 2022. (Dkt. No. 45.) See Caussade v. U.S., 293 F.R.D. 625, 630 (S.D.N.Y. 2013) (“Where a [p]laintiff has become inaccessible for months at a time, courts presume prejudice.”) (citations omitted); see also Georgiadis v. The First Boston Corp., 167 F.R.D. 24, 25 (S.D.N.Y. 1996) (“The passage of time always threatens difficulty as memories fade.”). Therefore, the third factor also weighs in favor of dismissal.
The fourth factor addresses the balance between the Court's interest in functioning efficiently, and Plaintiff's interest in having an opportunity to be heard. See Lucas, 84 F.3d at 535. Under the circumstances, the Court finds the need to alleviate congestion on the Court's docket outweighs Plaintiff's right to receive a further chance to be heard in this case. See Perez v. Wallace, No. 1:15-CV-240 (GTS/CFH), 2016 WL 2865737, at *3 (N.D.N.Y. Apr. 11, 2016); see also Pena v. Zazzle Inc., 587 F.Supp.3d 109, 114 (S.D.N.Y. 2022) (citation omitted) (“Although [the plaintiff's] failure to prosecute is a ‘silent' failure,” as opposed to one that is “vexatious and burdensome[,]” “the Court has a strong interest in managing its docket and cannot indefinitely wait for [the plaintiff] to turn his attention to this case. Furthermore, his ‘failure to comply with the court's order or make an attempt to prosecute this case dismisses his right to have the court hear his claim.”). Thus, this factor also weighs in favor of dismissal.
Finally, the Court has carefully considered sanctions less drastic than dismissal and finds them to be inadequate under the circumstances. See, e.g., Flynn v. Ward, No. 9:15-CV-1028 (BKS/CFH), 2019 WL 2085986, at *2 (N.D.N.Y. May 13, 2019) (noting that lesser sanctions were unlikely to be successful where the plaintiff did not update the Court with an address and the Court “currently has no way of contacting [him]”); see also Anthony v. Lyons, No. 9:18-CV-0849, 2021 WL 1701754 (GLS/CFH), at *5 (N.D.N.Y. Apr. 12, 2021) (“Dismissal has been found to be an ‘adequate remedy for failure to prosecute where a plaintiff cannot be contacted, because the plaintiff would be unaware of any lesser sanction that could be imposed.'”); McKnight v. J. Ferrick, et al., No. 9:16-CV-0957 (TJM/DEP), 2017 WL 3172794, at *3 (N.D.N.Y. June 30, 2017) (“plaintiff's failure to communicate, which by now is nearly six months, weighs in favor of dismissal . . . [a]lthough the length of plaintiff's delay to date is not exceedingly long, there is no indication of an end to his inactivity.”). As such, the fifth factor also weighs in favor of dismissal.
Accordingly, based upon Plaintiff's failure to comply with orders and directives from the Court, and after considering the factors relevant to a dismissal under Rule 41(b), the Court recommends granting Defendants' motion to dismiss and dismissing Plaintiff's complaint with prejudice. See Lomax v. Ortiz-Marquez, 140 S.Ct. 1721, 1725 (2020) (citation omitted) (“Federal Rule of Civil Procedure 41(b) . . . tells courts to treat the dismissal ‘as an adjudication on the merits'-meaning a dismissal with prejudice.”); see also Hutcheon v. Farnum, No. 9:18-CV-00203 (MAD/CFH), 2019 WL 7971873, at *3 (N.D.N.Y. Nov. 4, 2019) (collecting cases to support dismissal with prejudice).
WHEREFORE, for the reasons set forth above, it is hereby
RECOMMENDED that Defendants' motion to dismiss (Dkt. No. 49) be GRANTED and Plaintiff's complaint (Dkt. No. 1) be DISMISSED WITH PREJUDICE; and it is further
ORDERED that the Clerk of the Court serve a copy of this Report-Recommendation and Order on all parties in accordance with the Local Rules, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding Pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation and Order 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).
IT IS SO ORDERED.