Opinion
9:20-CV-00179 (GLS/TWD)
12-02-2021
JUSTIN LLEWELLYN, Plaintiff, v. S. PEACOCK, Defendant.
JUSTIN LLEWELLYN, Plaintiff, pro se HON. LETITIA JAMES LAUREN ROSE EVERSLEY, Attorney General for the State of New York Assistant Attorney General Counsel for Defendant
JUSTIN LLEWELLYN, Plaintiff, pro se
HON. LETITIA JAMES LAUREN ROSE EVERSLEY, Attorney General for the State of New York Assistant Attorney General Counsel for Defendant
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
This matter has been referred for a Report and Recommendation by the Honorable Gary L. Sharpe, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Presently before the Court is Defendant's unopposed motion to dismiss Plaintiff's amended complaint for lack of prosecution. (Dkt. No. 29.) For the reasons set forth below, the Court recommends granting Defendant's motion.
I. BACKGROUND
Plaintiff Justin Llewellyn, an inmate formerly in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), commenced this pro se action on February 20, 2020, against Defendant Susan Peacock. (Dkt. No. 1). On March 9, 2020, Judge Sharpe dismissed Plaintiff's complaint for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), but afforded him an opportunity to file an amended complaint. (Dkt. No. 4.) It was further ordered that “Plaintiff is also required to promptly notify the Clerk's Office and all parties or their counsel, in writing, of any change in his address; his failure to do so may result in the dismissal of this action[.]” Id. at 20 (emphasis in original).
Page references to docket entries are to the page number the Court's CM/ECF system automatically assigns.
Plaintiff filed an amended complaint on April 6, 2020. (Dkt. No. 5.) Judge Sharpe reviewed Plaintiff's amended complaint in accordance with 28 U.S.C. § 1915 and construed it as raising a Fourteenth Amendment due process claim against Defendant. (Dkt. No. 7 (“Decision & Order”).) Plaintiff's amended complaint was accepted for filing, and it was again ordered that “Plaintiff is also required to promptly notify the Clerk's Office and all parties or their counsel of any change in his address; plaintiff's failure to do so will result in the dismissal of this action[.]” Id. at 6 (emphasis in original).
On July 9, 2020, Defendant filed a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 12.) By Text Notice issued July 10, 2020, Plaintiff was advised of the August 2, 2020, deadline to respond. (Dkt. No. 13.) On August 12, 2020, after having not received a response, the Court sua sponte granted Plaintiff an extension to respond. (Dkt. No. 14.) Plaintiff did not file an opposition to Defendant's motion. Subsequently, on January 8, 2021, this Court recommended denying Defendant's motion to dismiss (“Report-Recommendation”). (Dkt. No. 15.) Judge Sharpe adopted the Report-Recommendation on February 9, 2019 (“Summary Order”). (Dkt. No. 17.)
On February 18, 2021, Defendant filed an answer to Plaintiff's amended complaint and served a copy of the answer to Plaintiff's putative address at Queensboro Correctional Facility (“Queensboro C.F.”). (Dkt. No. 18-1.) On the same date, the Court sent a Mandatory Pretrial Discovery and Scheduling Order (“Scheduling Order”) to Plaintiff's listed address at Orleans Correctional Facility (“Orleans C.F.”). (Dkt. No. 19). The Clerk also mailed a copy of the Scheduling Order and a notice of change of address form to Queensboro C.F. (See Text Entry 2/19/2021.)
Defendant noted that the DOCCS inmate locater indicated Plaintiff has been released. His last known address is Queensboro C.F. (Dkt. No. 18 at 5 n.1.)
On February 24, 2021, the mailed copy of the Scheduling Order sent to Orleans C.F. was returned as undeliverable and the envelope was marked “Released.” (Dkt. No. 20.) On March 5, 2021, the mailed copies of the Scheduling Order and Summary Order sent to Queensboro C.F. were returned as undeliverable. (Dkt. No. 22.) On March 9, 2021, Defendant's answer to Plaintiff's amended complaint was also returned as undeliverable with the envelope marked “Return to Sender --- Released.” (Dkt. No. 29-2 at 4.) Thereafter, on March 15, 2021, Defendant filed a letter motion requesting a telephone conference to determine whether Plaintiff wanted to continue pursuing this action. (Dkt. No. 23.) On March 26, 2021, the copy of the Report-Recommendation was returned as undeliverable. (Dkt. No. 24.)
By Text Order issued April 9, 2021, this Court, inter alia, adjourned all pretrial deadlines and directed Plaintiff to “file a change of address and a statement with the Court by 4/30/2021 indicating his interest in continuing to pursue this action.” (Dkt. No. 25.) The Text Order warned that “Plaintiff's failure to respond to this directive may result in sanctions including, but not limited to, dismissal of the action for failure to prosecute and failure to follow Court orders and directives.” Id. A copy of the Text Order was sent to Plaintiff's listed address at Orleans C.F. Id. On April 23, 2021, the copy of that Text Order was returned to the Court as undeliverable and it had apparently had been forwarded to Sing Sing Correctional Facility (“Sing Sing C.F.”) by DOCCS. (Dkt. No. 26.) To date, Plaintiff has not responded to that Text Order.
On May 5, 2021, the Court directed Defendant to file a motion seeking dismissal for failure to prosecute and failure to follow Court orders. (Dkt. No. 27.) On May 12, 2021, the mailed copy of that Text Order sent to Plaintiff at Orleans C.F. was also returned as undeliverable. (Dkt. No. 28.)
On May 13, 2021, Defendant filed the pending motion to dismiss pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and Local Rules 10.1(c)(2) and 41.2(b) of this District's Local Rules of Practice. (Dkt. No. 29.) Defendant seeks dismissal for failure to prosecute because Plaintiff's “failure to notify this Court or defense counsel of his change of address has rendered Defendant unable to begin discovery or take Plaintiff's deposition.” (Dkt. No. 29-1 at 4.) To that end, Defense counsel conducted a search on the inmate information system on the public website maintained by DOCCS, which revealed that Plaintiff was released from DOCCS custody to parole supervision on April 13, 2021. Id. Plaintiff's releasing facility was listed as Sing Sing C.F. Id. Plaintiff has not responded to the motion or communicated with the Court.
See http://nysdoccslookup.doccs.ny.gov (DIN 19-R-0168) (last visited Dec. 2, 2021).
II. MOTION TO DISMISS FOR FAILURE TO PROSECUTE
Rule 41 of the Federal Rules of Civil Procedure States that, “[i]f 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 claims against it.” Fed.R.Civ.P. 41(b). “A dismissal under this subdivision . . . operates as an adjudication on the merits.” Id. The Second Circuit has emphasized that “dismissal for failure to prosecute is a ‘harsh remedy to be utilized only in extreme situations.'”
Local Rule 10.1(c)(2) states that “all attorneys of record and pro se litigants must immediately notify the court of any change of address, ” and requires parties to file the notice of change with the Clerk and serve all other parties to the action. L.R. 10.1(c)(2). Another Rule provides that “failure to notify the Court of a change of address in accordance with [Local] Rule 10.1(c)(2) may result in the dismissal of any pending action.” L.R. 41.2(b).
U.S. ex rel. Drake v. Norden Systems, Inc., 375 F.3d 248, 254 (2d Cir. 2004) (quoting Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)). A court analyzing a motion to dismiss must weigh the following 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.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). The Court will address these factors in turn.
A. Duration
Plaintiff's last communication with the Court pertaining to this action was a letter dated April 9, 2020. (Dkt. No. 6.) The letter was mailed from Orleans C.F., the same address currently on file with the Court. As detailed above, it appears Plaintiff was transferred from Orleans C.F. to Queensboro C.F. and then to Sing Sing C.F., where he was released to parole supervision on April 13, 2021. (Dkt. No. 29-1 at 9.) Plaintiff, however, has failed to update or notify the Court or defense counsel of a change in his address.
Recently, the Second Circuit affirmed the dismissal of a case under Rule 41(b) where, “by the time the [District] Court issued its decision; eleven months had passed since [the Plaintiff's] response to discovery demands was first due.” Heendeniya v. St. Joseph's Hospital Health Center, 830 Fed.Appx. 354, 358 (2d Cir. 2020). The Court also noted that even “shorter delays could support dismissal.” Id. (citing Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 666 (2d Cir. 1980) (affirming dismissal where plaintiffs took no steps to move case toward trial during a six-month period)). Here, because Plaintiff has indisputably failed to participate in this litigation since April 9, 2020, the Court finds this factor weighs in favor of dismissal.
B. Notice
“[W]hile a court is ordinarily obligated to afford a special solicitude to pro se litigants, dismissal of a pro se litigant's action as a sanction may nonetheless be appropriate so long as a warning has been given that noncompliance can result in dismissal.” Koehl v. Bernstein, 740 F.3d 860, 862 (2d Cir. 2014) (citing Valentine v. Museum of Modern Art, 29 F.3d 47, 49 (2d Cir. 1994)) (quotations omitted). As indicated above, Plaintiff was advised of his obligation to “promptly notify the Clerk's Office and all parties or their counsel, in writing, of any change in his address; his failure to do so may result in the dismissal of this action[.]” (Dkt. Nos. 4 at 20, 7 at 6; see also Dkt. No. 25.) As such, this factor weighs in favor of dismissal.
C. Prejudice to Defendant
Prejudice “may be presumed as a matter of law in certain cases, but the issue turns on the degree to which the delay was lengthy and inexcusable.” Drake, 375 F.3d at 256 (citing Lyell Theatre Corp. v. Loews Corp., 682 F.3d 37, 43 (2d Cir. 1982)). Therefore, where a “delay is more moderate or excusable, the need to show actual prejudice is proportionally greater.” Id. (citing Lyell Theatre Corp., 682 F.3d at 43). “Where a Plaintiff has become inaccessible for months at a time, courts presume prejudice.” Caussade v. United States, 293 F.R.D. 625, 630 (S.D.N.Y. 2013) (citations omitted).
Here, Defendant argues she “will certainly be prejudiced by any further delay, as all deadlines have been stayed and Defendant will be unable to receive discovery from Plaintiff or take Plaintiff's deposition.” (Dkt. No. 29-1 at 9.) The unexcused delay in Plaintiff's accessibility means prejudice is presumed. Accordingly, the Court finds this factor weighs in favor of dismissal.
D. Balancing of Interests
The Second Circuit has stated “there must be compelling evidence of an extreme effect on court congestion before a litigant's right to be heard is subrogated to the convenience of the court.” Lucas, 84 F.3d at 535-36. “Nonetheless, fairness to other litigants, whether in the same case or merely in the same court as competitors for scarce judicial resources may warrant a dismissal under Rule 41(b).” Rubin v. Abbott Labs., 319 F.R.D. 118, 121 (S.D.N.Y. 2016) (citing Chira, 634 F.2d at 668 (internal quotation marks omitted)). The Rubin Court also stated that Courts in that district “have held that calendar congestion outweighed a plaintiff's opportunity to be heard when the plaintiff has rebuffed opportunities to be heard.” Id. (citations omitted).
In the case at bar, Defendant states that “the Court's interest in managing its own docket weighs in favor of dismissal at this juncture.” (Dkt. No. 29-1 at 9.) However, Defendant does not provide “compelling evidence of an extreme effect on court congestion.” See Lucas, 84 F.3d at 535. In LeSane, the Second Circuit noted the “plaintiff's failure to prosecute in this case was silent and unobtrusive rather than vexatious and burdensome: plaintiff simply did not make submissions required by the court; he did not swamp the court with irrelevant or obstructionist filings.” LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 210 (2d Cir. 2001); see also Baptiste v. Sommers, 768 F.3d 212 (2d Cir. 2014) (concluding that the Court had no reason to believe that the case at issue strained the docket in any unusual way despite a two-year stall); Mayanduenas v. Bigelow, 849 Fed.Appx. 308, 311 (2d Cir. 2021) (“[Plaintiff's] failure to prosecute ‘was silent and unobtrusive rather than vexatious and burdensome,' thus causing only minor court calendar congestion, if any.”) (citations omitted).
Here, there is no reason to believe that this case has strained the Court's docket. Accordingly, this factor is neutral.
E. Less Severe Sanctions
Finally, this Court must consider whether options less drastic than dismissal could be appropriate. Other possible options include an extension of time or the imposition of a fine. See Anthony v. Lyons, 9:18-CV-0849, 2021 WL 1701754 (GLS/CFH), at *5 (N.D.N.Y. Apr. 12, 2021) (citations omitted). However, Courts “are not required to exhaust possible lesser sanctions before imposing dismissal . . . if such a sanction is appropriate on the overall record.” Southern New England Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 148 (2d Cir. 2010).
In the present case, Defendant asserts “[i]t is not clear what, if any, less drastic sanction would adequately address the circumstances here[, ] . . . because Plaintiff's whereabouts are unknown, and any such order would not reach him[.]” (Dkt. No. 29-1 at 9.) The Court agrees. “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.'” Anthony, 2021 WL 1701754, at *5 (quoting Rubin, 319 F.R.D. 122 (finding that “it would not even be possible to impose lesser sanctions” where the plaintiff had “effectively disappeared”)); see also Flynn v. Ward, 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 [the] [p]laintiff.”). As such, this factor weighs in favor of dismissing this action.
Nevertheless, given his pro se status, “the lesser sanction of dismissal without prejudice (rather than with prejudice) is appropriate in order to strike the appropriate balance between the right to due process and the need to clear the docket and avoid prejudice to defendant by retaining open lawsuits with no activity.” Amoroso v. Cty. of Suffolk, No. 08-CV-826 (JFB)(ETB), 2010 WL 2985864, at *3 (E.D.N.Y. July 21, 2010); see also Barker v. City of New York, No. 19-cv-2582 (JGK), 2020 WL 589048, at *2 (S.D.N.Y. Feb. 5, 2020) (“In light of the minimal prejudice to the defendant and to the Court, and because of the plaintiff's pro se status, a dismissal without prejudice is warranted”); Hicks v. Stermer, 9:10-CV-1177 (LEK/DEP), 2011 WL 3841581, at *1 (N.D.N.Y. Apr. 24, 2011) (discussing that dismissal without prejudice, over dismissal with prejudice, pursuant to Rule 41(b) is appropriate where the pro se plaintiff failed to prosecute the action, and is a sanction less severe than dismissal with prejudice).
F. Local Rules
Based on the foregoing, the Court concludes dismissal is also warranted under Local Rule 10.1(c)(2), which requires parties to notify the Court of any change in address, and 41.2(b), which allows for the dismissal of an action when a party fails to notify the Court of a change of address. See, e.g., Tylicki v. Ryan, 244 F.R.D. 146, 147 (N.D.N.Y. 2006) (dismissing action due to the plaintiffs failure to comply with the Local Rule's requirement to notify the Court of a change of address).
WHEREFORE, for the reasons set forth herein, it is hereby
RECOMMENDED that Defendant's motion to dismiss (Dkt. No. 29) be GRANTED and Plaintiffs amended complaint (Dkt. No. 5) be DISMISSED WITHOUT PREJUDICE; and it is further
ORDERED that the Clerk serve a copy of this Report-Recommendation and Order on Plaintiff to his address on file, Orleans C.F., and the releasing facility, Sing Sing C.F., 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), 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); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation 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).