Opinion
9:21-CV-0502 (TJM/ML)
10-18-2023
KENNETH HALL, Plaintiff, v. C.O. NICHOLS; and CO BELL, Defendants.
KENNETH HALL PRO SE PLAINTIFF LETITIA A. JAMES ATTORNEY GENERAL FOR THE STATE OF NEW YORK AIMEE COWAN, ESQ. ASSISTANT ATTORNEY GENERAL COUNSEL FOR DEFENDANTS
KENNETH HALL
PRO SE PLAINTIFF
LETITIA A. JAMES
ATTORNEY GENERAL FOR THE STATE OF NEW YORK
AIMEE COWAN, ESQ. ASSISTANT ATTORNEY GENERAL
COUNSEL FOR DEFENDANTS
REPORT AND RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
Currently before the Court, in this civil rights action filed by Kenneth Hall (“Plaintiff”) against C.O. Nichols and CO Bell (collectively “Defendants”), is Defendants' second motion to dismiss for failure to prosecute pursuant to Fed.R.Civ.P. 41(b). (Dkt. No. 61.) For the reasons set forth below, I recommend that Defendants' motion be granted.
I. RELEVANT BACKGROUND
On February 22, 2021, Plaintiff commenced this action by the filing of a Complaint, accompanied by a motion for leave to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2.)
On April 25, 2022, the undersigned issued a Report and Recommendation which recommended that Plaintiff's Second Amended Complaint (Dkt. No. 16) be dismissed in its entirety pursuant to Fed.R.Civ.P. 41(b) based on Plaintiff's failure to prosecute and comply with the Court's orders and local rules of practice. (Dkt. No. 36.) The Report and Recommendation dated April 25, 2022, thoroughly set forth the procedural history of this matter through the issuance of that order. (Dkt. No. 36 at 2-3.)
On May 5, 2022, the Court received as undeliverable the undersigned's Report and Recommendation dated April 25, 2022. (Dkt. No. 37.) On May 11, 2022, Plaintiff filed a notice of change of address and objections to the undersigned's Report and Recommendation dated April 25, 2022. (Dkt. Nos. 38, 39.)
On September 29, 2022, Senior United States District Judge Thomas J. McAvoy sustained Plaintiff's objections and declined to accept and adopt the undersigned's Report and Recommendation (Dkt. No. 36) noting that since the filing of the undersigned's Report and Recommendation, Plaintiff updated his address and stated his desire to continue the action. (Dkt. No. 40.)
On September 29, 2022, the undersigned issued a text order cautioning Plaintiff that “ FAILURE TO COMPLY WITH COURT ORDERS OR FAILURE TO ENGAGE IN THE DISCOVERY PROCESS MAY RESULT IN SANCTIONS BEING IMPOSED PURSUANT TO FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL OF THE CASE. ” (Dkt. No. 41.) Moreover, the undersigned directed Plaintiff “to immediately notify the Clerk's Office and all parties and their counsel, in writing, of any change in his address.” (Dkt. No. 42.)
On January 31, 2023, Defendants filed a letter motion requesting the Court direct Plaintiff to provide executed authorizations. (Dkt. No. 51.) On February 1, 2023, the undersigned issued an order directing Plaintiff to, on or before February 8, 2023, provide Defendants with signed authorizations for the release of his New York State Office of Mental Health records and for the release of his Niagara County Jail medical records. (Dkt. No. 52.) Plaintiff was again cautioned that “ FAILURE TO COMPLY WITH COURT ORDERS OR FAILURE TO ENGAGE IN THE DISCOVERY PROCESS MAY RESULT IN
SANCTIONS BEING IMPOSED PURSUANT TO FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL OF THE CASE. ” (Id.) On February 10, 2023, Defendants filed a status report indicating that although they received executed authorizations from Plaintiff, the Office of Mental Health authorization was not properly witnessed. (Dkt. No. 55.)
On February 10, 2023, the undersigned issued a text order scheduling a hearing for February 17, 2023, noting that “Plaintiff shall appear and be prepared to show cause why he has not complied with Court orders and why sanctions should not be imposed.” (Dkt. No. 56.)
On February 17, 2023, the undersigned held an on the record conference during which, Plaintiff was directed to comply with the Court's order dated February 1, 2023. (Minute Entry dated 2/17/2023; Dkt. No. 58.) Plaintiff was again cautioned that “FAILURE TO COMPLY WITH COURT ORDERS OR FAILURE TO ENGAGE IN THE DISCOVERY PROCESS MAY RESULT IN SANCTIONS BEING IMPOSED PURSUANT TO FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL OF THE CASE.” (Dkt. No. 58.)
On March 27, 2023, Defendants filed a letter motion requesting that Plaintiff be directed to file a notice of address change with the Court. (Dkt. No. 59.) Defendants noted that on March 21, 2023, they mailed a letter to Plaintiff to the address listed on the docket and that the letter was returned stamped “RETURN TO SENDER.” (Id. at 1.) In addition, Defendants noted that a search of the Niagara County Sheriff's Office database revealed that Plaintiff was no longer an inmate at that facility and a search of the New York State Department of Corrections and Community Supervision's website indicated that Plaintiff was not in DOCCS custody. (Id.)
On March 27, 2023, the undersigned ordered Plaintiff to notify the Clerk's Office and all parties by April 4, 2023, in writing of any change in his address. (Dkt. No. 60.) Plaintiff was again cautioned that “ FAILURE TO COMPLY WITH COURT ORDERS OR ADVISE THE COURT OF A CHANGE OF ADDRESS MAY RESULT IN SANCTIONS BEING IMPOSED PURSUANT TO FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL OF THE CASE. ” (Id.)
On April 5, 2023, Defendants filed the pending motion to dismiss for lack of prosecution pursuant to Fed.R.Civ.P. 41. (Dkt. No. 61.) On April 6, 2023, the undersigned issued an order staying the deadline to file a motion for summary judgment. (Dkt. No. 63.) On April 7, 2023, the Court received as undeliverable its order dated March 27, 2023. (Dkt.No. 64.)
On April 7, 2023, the undersigned issued an order directing Plaintiff to immediately comply with the Court's order dated March 27, 2023. (Dkt.No. 65.) Again, the Court cautioned Plaintiff that “ FAILURE TO COMPLY WITH COURT ORDERS OR ADVISE THE COURT OF A CHANGE OF ADDRESS OR FAILURE TO RESPOND TO A MOTION TO DISMISS MAY RESULT IN SANCTIONS BEING IMPOSED PURSUANT TO FED. R. CIV. P. 37 & 41, INCLUDING DISMISSAL OF THE CASE. ” (Dkt. No. 65.) On April 20, 2023, the Court received as undeliverable the Court's Order dated April 6, 2023. (Dkt. No. 66.)
On April 28, 2023, Defendants filed a submission in support of their motion to dismiss. (Dkt. No. 67.) On May 1, 2023, the Court received as undeliverable the Court's order dated April 7, 2023. (Dkt. No. 68.)
To date, Plaintiff has not responded to Defendants' motion to dismiss. (See generally docket sheet.)
II. LEGAL STANDARD GOVERNING MOTIONS TO DISMISS FOR FAILURE TO PROSECUTE
For reasons that are self-evident, this Court's local rules require that “[a]ll attorneys of record and Pro Se litigants immediately notify the Court of any change of address.” N.D.N.Y. L.R. 10.1(c)(2) (emphasis omitted). As one court has observed with respect to this requirement,
[i]t is neither feasible nor legally required that the clerks of the district courts undertake independently to maintain current addresses on all parties to pending actions. It is incumbent upon litigants to inform the clerk of address changes, for it is manifest that communications between the clerk and the parties or their counsel will be conducted principally by mail. In addition to keeping the clerk informed of any change of address, parties are obliged to make timely status inquiries. Address changes normally would be reflected by those inquiries if made in writing.Dansby v. Albany Cnty. Corr. Facility Staff, 95-CV-1525, 1996 WL 172699, at *1 (N.D.N.Y. Apr. 10, 1996) (Pooler, J.) (quoting Perkins v. King, 84-3310, 1985 U.S. App. LEXIS 31736, at *4 (5th Cir. Mar. 19, 1985)).
Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its discretion, order dismissal of an action based on a plaintiff's failure to prosecute or comply with an order of the court. Fed.R.Civ.P. 41(b); Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014); Rodriguez v. Goord, 04-CV-0358, 2007 WL 4246443, at *2 (N.D.N.Y. Nov. 27, 2007) (Scullin, J. adopting report and recommendation by Lowe, M.J.). That discretion should be exercised when necessary to “achieve the orderly and expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). In addition, it should be exercised with caution and restraint because dismissal is a particularly harsh remedy, especially when invoked against a Pro Se plaintiff. Baptiste, 768 F.3d at 216-17.
Although Rule 41(b) grants a defendant leave to move for dismissal based on a plaintiff's failure to prosecute or comply with a court order (rather than grant the court explicit authority to dismiss sua sponte), “courts retain the ‘inherent power' to sua sponte ‘clear their calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief.'” Rodriguez v. Goord, 04-CV-0358, 2007 WL 4246443, at *2 (N.D.N.Y. Nov. 27, 2007) (Scullin, J.) (quoting link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)). Indeed, the local rules of this Court recognize this authority and mandate that the Court exercise it under certain circumstances. See, e.g., N.D.N.Y. L.R. 41.2(a).
A determination of whether to dismiss an action pursuant to Rule 41(b) is informed by consideration of the following five specific factors: (1) the duration of the plaintiff's failure to comply with court orders; (2) whether the plaintiff was on notice that failure to comply would result in dismissal; (3) whether the defendant is 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 a fair chance to be heard; and (5) whether the imposition of sanctions less drastic than dismissal is appropriate. Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (citing Jackson v. City of New York, 22 F.3d 71, 74 (2d Cir. 1994); Alvarez v. Simmons Mkt. Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir. 1988)); see also Shannon v. Gen. Elec.Co.,186 F.3d 186, 193-94 (2d Cir. 1999).
III. ANALYSIS
Plaintiff was specifically informed of the requirement that he update his address with the Clerk of the Court or risk dismissal of his lawsuit, when he was provided with (1) Judge McAvoy's decision and order dated September 30, 2021 (Dkt. No. 18 at 12), (2) the undersigned's order of September 29, 2022 (Dkt. No. 42), (3) the undersigned's order of February 10, 2023 (Dkt. No. 56), (4) Defendants Letter Motion dated March 27, 2023 (Dkt. No. 59), (5) the undersigned's order dated March 27, 2023 (Dkt. No. 60), and (6) the undersigned's order of April 7, 2023 (Dkt. No. 65).
Based upon careful consideration of the foregoing relevant factors, I conclude that dismissal of Plaintiff's Second Amended Complaint at this juncture is warranted. The inability of the Court to communicate with Plaintiff is due solely to his failure to prosecute or to provide the Court with his updated address. Plaintiff's failure to proceed in this action has a substantial injurious effect on the litigation, and there is no end to Plaintiff's inaction in sight. Notably, Plaintiff has demonstrated that he is aware of his obligation to notify the court in writing of any changes to his address, having done so previously. (Dkt. Nos. 13, 38.)
In addition, Plaintiff was released from the custody of the Niagara County Sheriff's Department since at least March 21, 2023. (Dkt. No. 59.) Pursuant to Local Rule 41.2(a), “the plaintiff's failure to take action for four (4) months shall be presumptive evidence of lack of prosecution.” N.D.N.Y. L.R. 41.2(a). The last contact that Plaintiff had with the Court was on February 17, 2023, approximately eight months ago. (Minute Entry dated 2/17/2023; Dkt. No. 58.)
Despite Plaintiff's awareness of his responsibility, he has failed to provide an updated address to the Court since his release approximately seven months ago. (See generally docket sheet.) Given Plaintiff's manifest disinterest in pursuing his claims in this action, I find that the need to alleviate congestion on the Court's docket and Defendants' interest in defending against the claims asserted by Plaintiff, outweigh his right to receive a further opportunity to be heard in this matter. As required, I have considered less-drastic sanctions, but reject them as ineffective. For example, I am persuaded that issuing an order reprimanding Plaintiff for his conduct would be futile, given that such an order would, in all likelihood, never reach Plaintiff due to his failure to provide the Court with a current address. In addition, Plaintiff is aware that this action was previously in jeopardy of dismissal based on his failure to update his address with the Court. (Dkt. Nos. 36, 40.)
For each of these reasons and those set forth by Defendants in their moving papers (Dkt. Nos. 61, 67), I recommend that Plaintiff's Second Amended Complaint be dismissed.
IV. SUMMARY AND RECOMMENDATION
This matter cannot proceed without Plaintiff's prosecution and notification to the Court by Plaintiff of his current address. Since Plaintiff has failed to fulfill his obligations, it is hereby respectfully
RECOMMENDED that Plaintiff's Second Amended Complaint (Dkt. No. 16) be DISMISSED in its entirety, pursuant to Fed.R.Civ.P. 41(b), based on his failure to prosecute and comply with this Court's orders and local rules of practice; and it is further
RECOMMENDED that Defendants' motion to dismiss for failure to prosecute (Dkt. No. 61) be GRANTED ; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Report-Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE:
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 DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.
If you are proceeding Pro Se and 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 that 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).