Opinion
9:22-CV-0643 (AMN/ML)
12-14-2023
SHARIF KING, Plaintiff, v. R. LAMB, Defendant.
Sharif King Pro Se Plaintiff Five Points Correctional Facility Letitia A. James Attorney General for the State of New York Counsel for Defendant The Capitol Rachael Ouimet, Esq. Assistant Attorney General
Sharif King Pro Se Plaintiff Five Points Correctional Facility
Letitia A. James Attorney General for the State of New York Counsel for Defendant The Capitol
Rachael Ouimet, Esq. Assistant Attorney General
REPORT AND RECOMMENDATION
Miroslav Lovric, United States Magistrate Judge
Currently before the Court, in this civil rights action filed by Sharif King (“Plaintiff”) against R. Lamb (“Defendant”), is Defendant's motion to dismiss for failure to prosecute and for monetary sanctions pursuant to Fed.R.Civ.P. 37 and 41. (Dkt. No. 29.) For the reasons set forth below, I recommend that Defendant's motion be granted.
I. RELEVANT BACKGROUND
On June 15, 2022, 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 July 5, 2022, the undersigned granted Plaintiff's motion for leave to proceed IFP and ordered that Plaintiff's Eighth Amendment claims against Defendant survived sua sponte review and required a response. (Dkt. No. 4.) The undersigned cautioned Plaintiff that he is “required to promptly notify the Clerk's Office and all parties or their counsel, in writing, of any change in his address; their failure to do so will result in the dismissal of his action.” (Id. at 10.)
On February 21, 2023, Defendant filed a Letter Motion requesting a telephone conference to determine whether Plaintiff intended to prosecute his claims after Plaintiff failed to appear for his noticed deposition. (Dkt. No. 14.) On February 22, 2023, the undersigned issued a text order directing Defendant to file a detailed status report. (Dkt. No. 15.) The Court's text order dated February 22, 2023, was served on Plaintiff via regular mail at his last known address on the docket (Five Points Correctional Facility) and an address he provided in a different case pending within the district (Bellevue Shelter). (Id.)
On February 22, 2023, Defendant filed a detailed status report stating that: (1) Plaintiff was released from the New York State Department of Corrections and Community Supervision (“DOCCS”) on December 22, 2022, and (2) the address that DOCCS has on record for Plaintiff is Bellevue Shelter. (Dkt. No. 16.) On February 23, 2023, the undersigned issued a text order scheduling an on the record hearing for March 6, 2023 at 1:00 p.m., directing Plaintiff to appear at the hearing in person, and cautioning Plaintiff that “FAILURE TO COMPLY WITH COURT ORDERS OR FAILURE TO APPEAR FOR DEPOSITION 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. 17.) In addition, the undersigned's Text order directed Plaintiff “to provide the Clerk of the Court in writing by 3/6/2023 his current mailing address and Plaintiff is Ordered to keep such mailing address updated.” (Id.) The undersigned's Text Order dated February 23, 2023, was served on Plaintiff via regular mail at Five Points Correctional Facility and Bellevue Shelter. (Id.)
On February 28, 2023, the Court received as undeliverable the Text Order dated February 22, 2023, which was sent to Plaintiff at Five Points Correctional Facility. (Dkt. No. 18.) On March 1, 2023, the Court received as undeliverable the Text Order dated February 22, 2023, which was sent to Plaintiff at Bellevue Shelter. (Dkt. No. 19.) On March 2, 2023, the Court received as undeliverable the Text Order dated February 23, 2023, which was sent to Plaintiff at Bellevue Shelter. (Dkt. No. 20.) On March 3, 2023, the Court received as undeliverable the Text Order dated February 23, 2023, which was sent to Plaintiff at Five Points Correctional Facility. (Dkt. No. 21.)
On March 6, 2023, the undersigned held an on the record hearing and Plaintiff failed to appear. (Minute Entry dated 03/06/2023.) On March 6, 2023, the undersigned issued a text order scheduling an on the record hearing for March 21, 2023 at 2:00 p.m., directing Plaintiff to appear at the hearing in person, and cautioning Plaintiff that “FAILURE TO COMPLY WITH COURT ORDERS OR FAILURE TO APPEAR FOR DEPOSITION 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. 22.) The Court's Minute Entry and Text Order dated March 6, 2023, were served on Plaintiff via regular mail at Five Points Correctional Facility and Bellevue Shelter. (Minute Entry dated 03/05/2023; Dkt. No. 22.)
On March 16, 2023, the Court received as undeliverable the Minute Entry and Text Order dated March 6, 2023, which were sent to Plaintiff at Bellevue Shelter. (Dkt. No. 24.) On March 20, 2023, the Court received as undeliverable the Minute Entry and Text Order dated March 6, 2023, which were sent to Plaintiff at Five Points Correctional Facility. (Dkt. No. 25.)
On March 21, 2023, the undersigned held an on the record hearing and Plaintiff failed to appear. (Minute Entry dated 03/21/2023.) On March 22, 2023, the undersigned issued a text order noting that Plaintiff failed to appear for his deposition, failed to engage in the discovery process, violated Court orders, failed to update his address with the Court, and failed to appear at scheduled hearings. (Dkt. No. 26.) The undersigned further cautioned Plaintiff that “FAILURE TO COMPLY WITH COURT ORDERS OR FAILURE TO APPEAR FOR DEPOSITION 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.) The Court's Minute Entry dated 03/21/2023 and Text Order dated March 22, 2023, were served on Plaintiff via regular mail at Five Points Correctional Facility and Bellevue Shelter. (Minute Entry dated 03/21/2023; Dkt. No. 26.)
On March 29, 2023, the Court received as undeliverable the Minute Entry dated 03/21/2023, and Text Order dated March 22, 2023, which were sent to Plaintiff at Bellevue Shelter. (Dkt. No. 27.) On April 7, 2023, the Court received as undeliverable the Minute Entry dated 03/21/2023, and Text Order dated March 22, 2023, which were sent to Plaintiff at Five Points Correctional Facility. (Dkt. No. 28.)
On July 27, 2023, Defendant filed a motion to dismiss for lack of prosecution and seeking monetary sanctions pursuant to Fed.R.Civ.P. 37 and Fed.R.Civ.P. 41. (Dkt. No. 29.)
The deadline for Plaintiff to respond to Defendant's motion was August 17, 2023. (Id.) On August 22, 2023, the Court sua sponte extended the deadline for Plaintiff to respond to Defendant's motion until September 21, 2023. (Dkt. No. 30.) On August 30, 2023, the Court received as undeliverable the Text Order dated August 22, 2023, which was sent to Plaintiff at Five Points Correctional Facility. (Dkt. No. 31.)
To date, Plaintiff has not responded to Defendant's motion. (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 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) (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 Shannon v. Gen. Elec.Co., 186 F.3d 186, 193-94 (2d Cir. 1999); Lebarron v. Warren Cnty. Sheriff's Office, 13-CV-1572, 2016 WL 2621796, at *4, n.3 (N.D.N.Y. Apr. 6, 2016) (Hummel, M.J.) (quoting Barney v. Consol. Edison Co. of New York, 99-CV-0823, 2006 WL 4401019, at *16 (E.D.N.Y. July 19, 2006)) (“‘[C]ourts consider the same factors applicable to Rule 41(b) when considering dismissal pursuant to Rule 37.'”), report and recommendation adopted, 2016 WL 2636293 (N.D.N.Y. May 6, 2016) (Suddaby, C.J.).
Rule 37(d) of the Federal Rules of Civil Procedure provides that if an individual fails to appear at his own deposition after having received proper notice, the court may take various steps to sanction the disobedient party. Fed.R.Civ.P. 37(d)(1)(A)(i). Section 37(d) cross references Rule 37(b)(2)(A)(v), which also authorizes the court to dismiss an action for failure to comply with a discovery order. The imposition of sanctions under Rule 37 is within the discretion of the district court, and the sanction of dismissal is a harsh remedy to be used “only in extreme situations.” Bobal v. Rensselaer Polytechnic Institute, 916 F.2d 759, 764 (2d Cir. 1990). In order to impose such a severe sanction, the court must find willfulness, bad faith, or fault on the individual from whom discovery is sought. Bobal, 916 F.2d at 764. The party in question, particularly a Pro Se litigant, must have had prior notice that violation of the court's order would result in dismissal with prejudice. Simmons v. Abruzzo, 49 F.3d 83, 88 (2d Cir. 1995).
III. ANALYSIS
After carefully considering the matter, I recommend that Defendant's motion be granted for the reasons stated in Defendant's memorandum of law. (Dkt. No. 29, Attach. 1.) The following is intended to supplement, but not supplant, those reasons.
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 the undersigned's decision and order dated July 5, 2022. (Dkt. No. 4 at 10.)
Based upon careful consideration of the foregoing relevant factors, I conclude that dismissal of Plaintiff's 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.
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 in commencing the action, over one year ago. (Dkt. No. 1; see generally docket sheet.)
Despite Plaintiff's awareness of his responsibility, he has failed to provide an updated address to the Court since his release from custody over eleven months ago. (See generally docket sheet; Dkt. No. 16 [Defendant's status report stating that Plaintiff was released from DOCCS custody on December 22, 2022].) 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 Defendant's 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.
For each of these reasons and those set forth by Defendant in Defendant's moving papers (Dkt. No. 29), I recommend that Plaintiff's Complaint be dismissed with prejudice.
The undersigned also notes that before Defendant's motion to dismiss was filed in this matter, another of Plaintiff's actions in this district was dismissed with prejudice pursuant to Fed.R.Civ.P. 41(b), due to his failure to prosecute and sanctions were imposed due to Plaintiff's failure to appear for a properly noticed deposition. King v. Demars, 9:21-CV-1202 (BKS/ML), Dkt. No. 58.
Moreover, Defendant has requested that Plaintiff be sanctioned in the amount of $88.80 for the costs incurred to schedule a properly noticed deposition that Plaintiff failed to appear for. Defendant's counsel submitted a sworn declaration, attaching an invoice for the fee incurred when Plaintiff failed to appear for the noticed deposition on February 21, 2023. (Dkt. No. 29, Attach. 2 at ¶¶ 10-13; Dkt. No. 29, Attach. 2 at 30 [invoice reflecting that Defendant incurred costs in the amount of $88.80 for the noticed deposition that Plaintiff failed to attend].)
I recommend that the Court impose a sanction against Plaintiff in the amount of $88.80. The Court's pre-trial scheduling order clearly stated that “Defense counsel shall provide plaintiff(s) with notice of the date of the deposition . . . and such notice shall be deemed sufficient if the notice is mailed to plaintiff(s) at least fifteen (15) days prior to the scheduled date for the deposition.” (Dkt. No. 11 at 5.)
On February 1, 2023, Defendant provided notice to Plaintiff that his deposition was scheduled for February 21, 2023. (Dkt. No. 29, Attach. 2 at 11-13.) This notice complied with the requirements set forth in the Court's pre-trial scheduling order in that, it was provided more than fifteen-days in advance of the scheduled deposition. Thus, I recommend that Defendant be reimbursed for the costs incurred related to the noticed deposition on February 21, 2023, in the amount of $88.80.
ACCORDINGLY, it is
RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1) be DISMISSED with prejudice, pursuant to Fed.R.Civ.P. 41(b) and in the alternative, pursuant Fed.R.Civ.P. 37, based on his failure to prosecute and comply with this Court's orders and local rules of practice; and it is further
RECOMMENDED that Defendant's motion to dismiss for failure to prosecute (Dkt. No. 29) be GRANTED to the extent that it seeks dismissal of the Complaint and that Plaintiff be sanctioned costs in the amount of $88.80; 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), the parties have fourteen 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. 28 U.S.C. § 636(b)(1) (Supp. 2013); FED. R. CIV. P. 6(A), 6(D), 72; 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)).
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).