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Hickman v. The City of New York

United States District Court, S.D. New York
Dec 3, 2021
20-CV-4603 (PGG) (KNF) (S.D.N.Y. Dec. 3, 2021)

Opinion

20-CV-4603 (PGG) (KNF)

12-03-2021

QUANDELL HICKMAN, Plaintiff, v. THE CITY OF NEW YORK, CAPTAIN CHRISTIAN, AND C.O. BORDEAUS, Defendants.


THE HONORABLE PAUL G. GARDEPHE, UNITED STATES DISTRICT JUDGE

REPORT AND RECOMMENDATION

KEVIN NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE

BACKGROUND

Plaintiff Quandell Hickman, proceeding pro se and in forma pauperis, brought this action for monetary damages and injunctive relief pursuant to 42 U.S.C. § 1983, alleging excessive use of force and deliberate indifference to his medical needs while he was detained at the Anna M. Kross Center on Rikers Island. By an order dated November 4, 2020, the Court scheduled a telephonic initial pretrial conference with the parties for December 8, 2020. See Docket Entry No. 16. The plaintiff failed to participate in the conference, and the Court rescheduled the conference to December 22, 2020. See Docket Entry No. 18. On December 15, 2020, the plaintiff wrote to the Court to update his address. Docket Entry No. 19. The plaintiff failed to participate in the conference on December 22, 2020, and the Court rescheduled the conference to January 14, 2021. See Docket Entry No. 20. The plaintiff failed to participate on January 14, 2021, and the Court rescheduled the conference to January 28, 2021, and thereafter to February 9, 2021. See Docket Entry Nos. 21 and 22.

The plaintiff participated in the telephonic initial pretrial conference on February 9, 2021, and a scheduling order was entered. See Docket Entry No. 24. However, the plaintiff failed to participate in the telephonic status conference set for July 7, 2021. The Court rescheduled the conference to July 20, 2021, and reminded the plaintiff that “failure to comply with a court order may result in sanctions, including the dismissal of a complaint.” See Docket Entry No. 25. The plaintiff failed to participate in the July 20, 2021 conference.

Before the Court is the defendants' motion “for an Order dismissing the Plaintiff's Complaint pursuant to Rules 41(b) [sic] and Rule 37 of the Federal Rules of Civil Procedure for failure to prosecute and failure to participate in discovery.” Docket Entry No. 26. The plaintiff failed to oppose the motion.

DEFENDANTS' CONTENTIONS

The defendants contend that, following the February 9, 2021 initial pretrial conference, the defendants served their initial disclosures on the plaintiff by email and by regular mail on March 3, 2021, and reminded the plaintiff that his failure to provide his initial disclosures could result in motion practice by the defendants. However, the defendants received no response from the plaintiff. The defendants then served the plaintiff document requests and interrogatories by email and regular mail on April 21, 2021, but received no response from the plaintiff. On June 3, 2021, the defendants contacted the plaintiff seeking his initial disclosures and responses to the defendants' discovery demands. The defendants attached the discovery demands again to their email message. The plaintiff responded with an email message asserting that he had not “received anything” and indicated that he was having trouble receiving mail at the address he provided to the court. The plaintiff provided a different address to the defendants and indicated that he would write to the court to provide his changed address. After the plaintiff failed to appear at the July 7, 2021 status conference, it was rescheduled to July 20, 2021, and the defendants sent notice of the rescheduled conference to the plaintiff via email. However, the plaintiff failed to participate in the rescheduled conference on July 20, 2021. The plaintiff has neither responded to the defendants' discovery demands nor served the defendants with his initial disclosures. At the time the instant motion was filed, the deadline for completing pretrial discovery activities was three days away, viz August 9, 2021.

The defendants contend that dismissal for failure to prosecute is warranted under Federal Rule of Civil Procedure 41(b). The defendants maintain that the plaintiff's failure to prosecute this action has resulted in significant delays. The plaintiff failed to participate in the first four scheduled initial pretrial conferences, resulting in a two-month delay in holding that conference. The plaintiff “has not meaningfully participated in this litigation since February 9, 2021-the date of his singular appearance herein.” The defendants contend that, were the Court to decline to dismiss this case, discovery would have to start anew, because the plaintiff has not participated in the pretrial discovery process. The defendants maintain that the plaintiff was aware of the consequences of failing to prosecute the action, as the Court warned him, by an order dated July 8, 2021, that failure to comply with a court order could result in sanctions, “including the dismissal of a complaint.” According to the defendants, they provided the plaintiff with a copy of this order via email. The defendants assert that the denial of their motion would prejudice them, as they would have “to continue to defend this action which Plaintiff has abandoned.” The defendants maintain that any sanction less than dismissal would be futile because, apparently, the plaintiff has abandoned his claims. The defendants note that, although “pro se litigants are generally afforded more latitude than represented parties regarding procedural rules, ” the plaintiff's failure to prosecute this action

does not stem from his inability to navigate complex legal tasks, but involve[s] relatively simple matters such as communicating with the Court, appearing at Court-Ordered conferences, and participating in discovery. Plaintiff has even shown that he is able to carry out such tasks, as he has previously filed documents, contacted the Court to change his address, appeared for conferences, and responded to emails from the Defendants.
Moreover, the Court has already given the plaintiff opportunities to remedy his failures to appear at conferences by rescheduling them.

The defendants contend that dismissal is also warranted under Federal Rule of Civil Procedure 37 as a sanction for the plaintiff's failure to engage in the pretrial discovery process. According to the defendants, the plaintiff's failure to engage in discovery was willful, because although the plaintiff communicated to the Court and to the defendants that he had difficulty receiving his mail, the defendants served the plaintiff their discovery demands by regular mail and email. However, the plaintiff failed completely to provide any responses to the defendants' discovery demands. The defendants contend that the plaintiff's “noncompliance has lasted roughly the entire life of the case.” The defendants assert that any sanction less than dismissal would lead only to further delays. The defendants maintain that the plaintiff was notified by the Court at the February 9, 2021 initial pretrial conference that he was required to participate in discovery and was reminded of this requirement several times by the defendants. The defendants contend that they advised the plaintiff that his failure to participate in discovery would result in a motion to dismiss his complaint.

In support of the motion, the defendants submitted a declaration by their attorney with: Exhibit A, “a copy of an email sent . . . to the Plaintiff on March 3, 2021”; Exhibit B, “a copy of an email sent . . . to Plaintiff on April 21, 2021”; Exhibit C, “a copy of email correspondence between [the defendants' counsel] and Plaintiff between June 3 and June 6, 2021”; Exhibit D, “a copy of email correspondence sent by the [defendants' counsel] to Plaintiff on July 8, 2021.”

LEGAL STANDARD

“If 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. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule- except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19- operates as an adjudication on the merits.” Fed.R.Civ.P. 41(b).

A district court considering a Rule 41(b) dismissal must weigh five factors: “(1) the duration of the plaintiff's failure [to prosecute or] 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.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). No single factor is generally dispositive. Nita v. Connecticut Dep't of Envtl. Prot., 16 F.3d 482, 485 (2d Cir. 1994). . . . [H]owever, . . . dismissals are “the harshest of sanctions” and we insist that dismissal “be proceeded by particular procedural prerequisites, ” including “notice of the sanctionable conduct, the standard by which it will be assessed, and an opportunity to be heard.” Mitchell v. Lyons Profl Servs., Inc., 708 F.3d 463, 467 (2d Cir. 2013) (collecting cases). Finally, because the sanction of dismissal with prejudice “has harsh consequences for clients, who may be blameless, ” we have instructed that “it should be used only in extreme situations.” Id. (internal quotation marks and citations omitted). We have similarly indicated that a pro se litigant's claim should be dismissed for failure to prosecute “only when the circumstances are sufficiently extreme.” LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (internal quotation marks omitted).
Baptiste v. Sommers, 768 F.3d 212, 216-17 (2d Cir. 2014).

“If a party . . . fails to obey an order to provide or permit discovery, . . . the court where the action is pending may issue further just orders. They may include the following: . . . dismissing the action or proceeding in whole or in part.” Fed.R.Civ.P. 37(b)(2)(A). A court must consider the following factors in determining whether to dismiss an action under Federal Rule of Civil Procedure 37: “(1) the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance; and (4) whether the non-compliant party had been warned of the consequences of . . . noncompliance.” World Wide Polymers, Inc. v. Shinkong Synthetic Fibers Corp., 694 F.3d 155, 159 (2d Cir. 2012)(citation omitted). “The severe sanction of dismissal with prejudice may be imposed even against a plaintiff who is proceeding pro se, so long as a warning has been given that noncompliance can result in dismissal.” Valentine v. Museum of Mod. Art, 29 F.3d 47, 50 (2d Cir. 1994).

APPLICATION OF LEGAL STANDARD

Whether Dismissal Is Warranted Under Federal Rule of Civil Procedure 41(b)

Duration of the Plaintiff's Failure to Prosecute

The defendants assert that the plaintiff has not “meaningfully participated in this litigation since February 9, 2021, ” the date of the initial pretrial conference. Although the plaintiff did communicate via email with the defendants once, on June 6, 2021, the plaintiff did not respond to the defendants' outstanding discovery demands, which were attached to the defendants' June 3, 2021 email message to him. Moreover, in the plaintiff's June 6, 2021 email message, the plaintiff indicated that he had been having trouble receiving mail at the address he had provided to the Clerk of Court, provided an alternate mailing address to the defendants, and expressed that he would write to the court to update his address; however, he failed to do so. The docket sheet for this action indicates that on June 20, 2021, the Clerk of Court received returned mail, namely, a copy of the December 22, 2020 order scheduling an initial pretrial conference for January 14, 2021. The mail was returned to the Clerk of Court for the following reason: “Return To Sender Refused Unable To Forward.” On July 19, 2021, the Clerk of Court received returned mail, namely, a copy of the July 8, 2021 order rescheduling the telephonic status conference to July 20, 2021. The mail was returned to the Clerk of Court for the following reason: “Return To Sender Attempted - Not Known Unable To Forward.” The plaintiff was aware of the need to provide an updated address to the court, as he expressed in his June 6, 2021 email message to the defendants that he would do so; moreover, the plaintiff knew how to update his address, as evidenced by his December 15, 2020 letter to the court's Pro Se Office updating his address. See Docket Entry No. 19. However, the plaintiff has not provided the court with his current address. Moreover, beyond his brief June 6, 2021 email message to the defendants, the plaintiff has not communicated with the defendants, although the defendants have attempted to contact him via his email address and via the new mailing address he provided to them. The Court notes that the email address used by the defendants to communicate with the plaintiff is the same email address listed in the plaintiff's letter appearing at Docket Entry No. 19. The plaintiff has not made his initial disclosures or responded to the defendants' discovery demands and did not participate in the telephonic status conference on July 7, 2021, nor in the rescheduled telephonic status conference held on July 20, 2021.

The Court finds that the plaintiff has failed to participate in this action from February 9, 2021, to August 6, 2021, the date of the motion. The Court finds further that the duration of the plaintiff's failure to participate in the action, a period of approximately four months, is substantial.

Whether Plaintiff Was on Notice that Failure to Prosecute or Comply with the Court Order Would Result in Dismissal

The Court's December 8, 2020 order contained the following reminder: “The parties are reminded that failure to comply with a court order may result in sanctions, including the dismissal of the complaint.” Docket Entry No. 18. This same reminder appeared in the court's December 22, 2020 order. See Docket Entry No. 20. The Court's January 14, 2021 order and January 28, 2021 order contained the following notice: “The plaintiff[] is advised that failing to prosecute the action or to comply with a court order may result in the dismissal of his complaint by the court.” The Court's July 8, 2021 order contained the following reminder: “The plaintiff is reminded that failure to comply with a court order may result in sanctions, including the dismissal of a complaint.” Docket Entry No. 25. Based on the foregoing, the Court finds that the plaintiff had notice that his failure to prosecute the action or comply with court orders could result in dismissal of the action.

Whether the Defendants Are Likely to Be Prejudiced by Further Delay

The plaintiff's failure to attend conferences and engage in the pretrial discovery process is prejudicial to the defendants, who are unable to defend against the allegations in the complaint without the plaintiff's participation in the action. The Court finds that substantial prejudice will attend the defendants from any further delay in the proceedings.

Balancing of the Court's Interest in Managing Its Docket with the Plaintiffs Interest in Receiving a Fair Chance to Be Heard

In the eighteen months since the plaintiff filed his complaint, he has appeared at only one pretrial conference: the January 9, 2021 initial pretrial conference, which was the fourth such conference scheduled due to the plaintiff's failure to attend and participate in the earlier conferences. The plaintiff did not appear at the July 7, 2021 status conference or when that conference was rescheduled to July 20, 2021. The plaintiff's failure to participate in the action and to discharge his obligation to monitor the activities in the action creates a burden on the Court's docket by impeding the just, speedy, and inexpensive determination of the action, as contemplated by Rule 1 of the Federal Rules of Civil Procedure. Having provided multiple notices to the plaintiff that the sanction of dismissal may attend if he fails to comply with court orders and multiple opportunities to be heard, the Court finds that, in the circumstance of this case, the Court's interest in managing its docket outweighs the plaintiff's interest in receiving a fair chance to be heard.

Whether the Judge Has Adequately Considered a Sanction Less Drastic than Dismissal

The Court finds that any other sanction less drastic than dismissal of the action would be futile. This is so because the plaintiff, by failing to attend scheduled conferences, participate in the pretrial discovery process, and respond to the instant motion, has indicated that he no longer wishes to prosecute this action.

Whether Dismissal Is Warranted Under Federal Rule of Civil Procedure 37

Dismissal is available as a discovery sanction under Federal Rule of Civil Procedure 37(b)(2)(A) only when “a party . . . fails to obey an order to provide or permit discovery.” Although the defendants assert that the plaintiff has failed to engage in the discovery process, the defendants do not point to any order of the Court to provide or permit discovery that the plaintiff has disobeyed. Additionally, the defendants did not move to compel any discovery responses from the plaintiff. Under these circumstances, dismissing the action pursuant to Rule 37 of the Federal Rules of Civil Procedure is not warranted.

RECOMMENDATION

For the foregoing reasons, I recommend that the defendants' motion to dismiss, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, for lack of prosecution, Docket Entry No. 26, be granted.

FILING OF 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 shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Any requests for an extension of time for filing objections must be directed to Judge Gardephe. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).

The Clerk of Court is directed to mail a copy of this Report and Recommendation to the plaintiff.


Summaries of

Hickman v. The City of New York

United States District Court, S.D. New York
Dec 3, 2021
20-CV-4603 (PGG) (KNF) (S.D.N.Y. Dec. 3, 2021)
Case details for

Hickman v. The City of New York

Case Details

Full title:QUANDELL HICKMAN, Plaintiff, v. THE CITY OF NEW YORK, CAPTAIN CHRISTIAN…

Court:United States District Court, S.D. New York

Date published: Dec 3, 2021

Citations

20-CV-4603 (PGG) (KNF) (S.D.N.Y. Dec. 3, 2021)