Opinion
23-CV-02905 (PGG)(SN)
11-22-2023
YESSUH SUHYES HUSSEY, Plaintiff, v. MARIO SALGADO, et al., Defendants.
TO THE HONORABLE PAUL G. GARDEPHE:
REPORT & RECOMMENDATION
SARAH NETBURN, UNITED STATES MAGISTRATE JUDGE.
Yessuh Suhyes Hussey (“Plaintiff”), proceeding pro se, brings this action against Mario Salgado, Michael Gabriele, Thomas Ward, and the City of New York (together, “Defendants”) pursuant to 42 U.S.C. § 1983 for violations of his Fourth Amendment rights. Plaintiff has not engaged with this case since February 16, 2023. He is no longer at the address reflected on the docket, and he has not complied with orders requiring him to provide the Court with an updated address. Because Plaintiff has failed to comply with those orders or otherwise prosecute this case, the Court recommends that his claims be dismissed without prejudice for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
BACKGROUND
Plaintiff filed his initial complaint on January 19, 2023. ECF No. 1. He filed a second complaint on February 16, 2023, initiating a separate case. ECF No. 11. Both complaints assert claims arising from the same events. Because “Plaintiff cannot maintain two actions in federal court against overlapping defendants, arising out of the same incident,” the Court combined the two cases and identified Plaintiff's second complaint as an amendment to his initial complaint. Id.
Plaintiff has not engaged with this case since filing his second complaint in February 2023. At that time, Plaintiff was incarcerated by the New York City Department of Correction (“DOC”), and he provided the Court with addresses for his father and cousin so that the Court could reach him following his release from DOC custody. ECF No. 7. On April 7, 2023, the Court noted that Plaintiff had been released and ordered him to “notify the Court, in writing, within 30 days, of his current mailing address.” ECF No. 10. On October 12, 2023, the Court noted that Plaintiff had not provided his mailing address and ordered him to provide it by November 13, 2023. ECF No. 14. The Court warned Plaintiff that his case would be dismissed if he failed to comply with the Court's order. Id. In addition to mailing the April 2023 and October 2023 Orders to Plaintiff at his DOC address, the Court also mailed them to Plaintiff's father and cousin. Plaintiff has not contacted the Court or provided his current address.
DISCUSSION
A plaintiff has a general obligation to prosecute his case diligently. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). A court may dismiss the action, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, for failure to prosecute if the plaintiff fails to meet this obligation. In fact, “[a] plaintiff[']s lack of diligence alone is enough for dismissal.” West v. City of New York, 130 F.R.D. 522, 526 (S.D.N.Y. 1990). A pro se plaintiff, however, “should be granted special leniency regarding procedural matters.” LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001).
Although Rule 41(b) provides that “a defendant may move to dismiss the action or any claim against it” when a plaintiff fails to prosecute the case or comply with a court order, the court need not wait for a defendant to file such a motion. See Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962). Moreover, the court is not required to provide notice of the dismissal. “[S]uch dismissal is largely a matter of the judge's discretion.” See West, 130 F.R.D. at 524 . Indeed, because district courts are “necessarily vested” with the control required “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases,” the court may even dismiss an action with prejudice when a plaintiff fails to prosecute his case. Link, 370 U.S. at 629-31.
In deciding whether to dismiss an action for failure to prosecute, courts must 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) (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)). Of these factors, no one is dispositive. Id. (citing Nita v. Connecticut Dep't of Envtl. Prot., 16 F.3d 482, 485 (2d Cir. 1994)). While a district court is not required to address each factor in its written decision by a list of “‘robotic incantations,'” id. at 217 (quoting United States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005)), at a minimum, the court must provide a reason for the dismissal. See Grace v. New York, 10 Civ. 3853 (LTS)(GWG), 2010 WL 3489574, at *2 (Sept. 7, 2010), report and recommendation adopted, 2010 WL 4026060 (S.D.N.Y. Oct. 14, 2010).
Such analysis may not be necessary for a dismissal that is without prejudice. See Thrall v. Cent. N.Y. Reg'l Transp. Auth., 399 Fed.Appx. 663, 666 (2d Cir. 2010) (noting that dismissal without prejudice under Rule 41(b) is a “lesser sanction” than dismissal with prejudice). The Court will nonetheless analyze the Baptiste factors to ensure that the pro se plaintiff is afforded every chance to succeed on the merits.
Plaintiff has not filed any papers with the Court since February 16, 2023, more than nine months ago. His failure to provide the Court with his current address, despite multiple orders to do so, serves as an additional ground for dismissal. See Grace, 2010 WL 3489574, at *2 (“Courts have repeatedly recognized that dismissal for failure to prosecute is appropriate where a plaintiff effectively disappears by failing to provide a current address at which he or she can be reached.”)
The Court's October 2023 Order provided Plaintiff with notice that his claims would be dismissed for failure to prosecute if he did not provide the Court with his mailing address. This report and recommendation provides Plaintiff with additional notice and an opportunity to be heard before the District Judge. Although the Court expects defendants in pro se cases -particularly institutional defendants such as the City of New York - to move cases along, the defendants cannot be expected to mount a defense or otherwise proceed in a case against an entirely absent plaintiff.
Because Plaintiff has failed to provide the Court with his current address and has failed to take any actions in the past nine months to prosecute this case, the Court deems his claims abandoned. In light of Plaintiff's pro se status, however, I recommend that his claims be dismissed without prejudice. See Grace, 2010 WL 3489574, at *2.
CONCLUSION
I recommend that all claims asserted by Plaintiff be dismissed without prejudice, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
* * *
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties 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. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D), (E), or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Paul G. Gardephe, at the Thurgood Marshall Courthouse, 40 Foley Square, 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 Gardephe. 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).