Opinion
22-CV-2934 (JPC) (BCM)
08-01-2023
MUHAMMAD E. MILHOUSE, Plaintiff, v. THE CITY OF NEW YORK, et al., Defendants.
TO THE HON. JOHN P. CRONAN
REPORT AND RECOMMENDATION
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE.
After filing this action pro se and in forma pauperis in April 2022, plaintiff Muhammad Milhouse made several premature motions for discovery, but failed to comply with this Court's order to amend his pleading to identify the "Doe" defendant, and thereafter failed to respond to two follow-up court orders, including an order to show cause why this action should not be dismissed. I therefore recommend, respectfully, that this action be dismissed without prejudice pursuant to Fed.R.Civ.P. 16(f)(1)(C) and 41(b).
Background
Plaintiff filed two complaints on April 8, 2022, under two different docket numbers, both alleging that he was assaulted at the Hilton Garden Inn at 6 Water Street in Manhattan by employees of the New York City Department of Homeless Services (DHS), as well as by hotel employees, on multiple dates prior to February 7, 2021. See Compl. (Dkt. 2) at ECF pp. 7-9; Compl. in Case No. 22-CV-2940 (Dkt. 2) at ECF pp. 7-9. On May 31, 2022, the Hon. Laura Taylor Swain, Chief United States District Judge, consolidated the cases, directing that all further filings be docketed in in this action. See Order to Amend (Dkt. 4) at 5-6. Additionally, Chief Judge Swain granted plaintiff leave to file a single amended complaint clarifying, among other things, "who he is intending to sue." Id. at 6-8.
All docket numbers refer to the docket of this action unless otherwise noted.
In this action, plaintiff named as Defendant 1 "Hilton Garden Inn Employees (et. al)." In Case No. 22-CV-2940, he named as Defendant 1 "DHS - City of New York employees (et. al)."
Plaintiff filed his Amended Complaint on July 27, 2022, explaining that the Hilton Garden Inn was a "Covid-19 isolation site" and alleging that during his quarantine there by DHS, from January 20, 2021 through February 7, 2021, he endured physical and sexual assaults and was drugged with illicit substances. See Am. Compl. (Dkt. 5) at ECF pp. 6-8. Plaintiff named as defendants (at various points in his pleading) New York City (the City), two City agencies, and defendants described as: "Administrative Support"; "Cleaning and Sanitizing Housekeeping Staff"; John or Jane Doe "Site Supervisor NYCDHSDSS-DHS Covid-19 Isolation Site"; John or Jane Doe "24/7 Operation Staff/Housekeeping"; John or Jane Doe "NYCDHSDSS Access Control/'Building Ow[n]ers' Security"; and John or Jane Doe "Nurse/Medical Staff (Isolation Site Essential Services)." Id. at ECF pp. 1, 4-6.
On August 10, 2022, the Hon. John P. Cronan, United States District Judge, dismissed plaintiff's claims against the agencies, "Administrative Support," and "Cleaning and Sanitizing Housekeeping Staff," but directed service on the City. Order of Service (Dkt. 7) at 2-3. He also directed the New York City Law Department, as "attorney for and agent of the City of New York," to help identify the John or Jane Doe identified as the "Site Supervisor at the DHS Covid-19 isolation site at the Hilton Garden Inn." Id. at 4-5. Judge Cronan instructed plaintiff that, within 30 days of receiving identifying information from the Law Department, he was to "file a second amended complaint naming the John or Jane Doe defendant." Id. at 5. Additionally, Judge Cronan referred the case to me for general pretrial management. (Dkt. 9.)
On October 20, 2022 - before the City appeared or identified the DHS Site Supervisor -plaintiff filed an unauthorized second amended complaint (Dkt. 13) that did not conform to Judge Cronan's Order of Service. On December 8, 2022, I struck that pleading, again directed service of the summons and the Amended Complaint on the City, and again ordered the Law Department to assist plaintiff in identifying the "John or Jane Doe 'Site Supervisor.'" Am. Order of Service (Dkt. 16) at 3-5.
On October 20, 2022, and again on November 30, 2022, plaintiff consented to electronic service (Dkts. 12, 15), and since then he has received an email notification, at the email address he provided, every time the Court issues an order or another party files a document.
Beginning on December 27, 2022, plaintiff filed a series of discovery motions - some of which appeared to request documents unrelated to this action - without having first served any discovery request on any party. (See Dkts. 20, 22, 28, 30.) I denied those motions as premature. (See Dkts. 24, 33.) The City was served with process on January 10, 2023 (see Dkt. 32), and answered the Amended Complaint on January 31, 2023. (Dkt. 36.)
Additionally, plaintiff filed a motion for the appointment of pro bono counsel (Dkt. 19), which I denied (along with one of his discovery motions) on January 3, 2023. (Dkt. 24.) The next day, plaintiff moved to vacate my January 3 order. (Dkt. 25.) On February 1, 2023, Judge Cronan construed the motion as an objection filed pursuant to Fed.R.Civ.P. 72(a) and overruled the objection. (Dkt. 39.)
On February 1, 2023, plaintiff updated his street address, but did not revoke his consent to electronic service (and reconfirmed his email address). (Dkt. 38.)
On February 2, 2023, the Law Department identified the Jane Doe site supervisor as Karen Edwards. (Dkt. 40.) Although the Amended Order of Service required plaintiff to further amend his complaint within 30 days of that date, i.e., by March 5, 2023, plaintiff did not do so. Instead, he filed another discovery motion on March 10, 2023 (Dkt. 41), once again asking the Court to compel production of documents and information that he had never requested from the City itself, and that appeared unrelated to the claims in this action. (See Dkt. 42.) On March 14, 2023, I denied that discovery motion, reminded plaintiff of his obligation to further amend his complaint, and sua sponte extended his deadline to do so until March 28, 2023. (Dkt. 43.)
On April 12, 2023 - at which point plaintiff still had not amended his complaint to identify the site supervisor - I directed him to show cause, in writing, "why this action should not be dismissed pursuant to Fed.R.Civ.P. 16(f)(1)(C), and/or Fed.R.Civ.P. 41(b) for failure to comply with this Court's orders and/or for failure to prosecute." (Dkt. 44 at 2.) Plaintiff has neither shown cause nor further amended his complaint. His last filing was his March 10, 2023 discovery motion.
Legal Standards
The Federal Rules of Civil Procedure authorize district courts to dismiss an action "[i]f the plaintiff fails to prosecute or to comply with [the federal] rules or a court order." Fed.R.Civ.P. 41(b); see also Fed.R.Civ.P. 16(f)(1)(C) (court may issue "any just orders," including orders authorized by Rule 37(b)(2)(A), if that party "fails to obey a scheduling or other pretrial order"). The Rule 37 sanctions incorporated into Rule 16 include "dismissing the action or proceeding in whole or in part." Fed.R.Civ.P. 37(b)(2)(A)(v).
Dismissal, with or without prejudice, is "a harsh remedy to be utilized only in extreme situations." LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972) (per curiam)), especially when the plaintiff is unrepresented, because pro se plaintiffs are "granted special leniency regarding procedural matters." Id. (citing Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)); see also McDonald v. Head Crim. Ct. Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988) ("pro se litigants may in general deserve more lenient treatment than those represented by counsel"). However, like all litigants, pro se parties "have an obligation to comply with court orders. When they flout that obligation they . . . must suffer the consequences of their actions." McDonald, 850 F.2d at 124.
A district court considering a Rule 41(b) dismissal must weigh 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, 84 F.3d at 535). No single factor is dispositive. Id. (internal citation omitted); Shannon v. Gen. Elec. Co., 186 F.3d 186, 195 (2d Cir. 1999).
Similarly, when considering a dismissal pursuant to Rule 16(f)(1)(C), the court appropriately considers "(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." DeJesus v. Venetozzi, 2023 WL 2864194, at *4 (N.D.N.Y. Feb. 6, 2023) (quoting Funk v. Belneftekhim, 861 F.3d 354, 366 (2d Cir. 2017)) (alteration in original), report and recommendation adopted, 2023 WL 2495834 (N.D.N.Y. Mar. 14, 2023). Importantly, "[t]he court need not find that a party or litigant acted in bad faith as a prerequisite to imposing sanctions under Rule 16(f); [r]ather, the fact that a party violated a pretrial order is sufficient to allow a Rule 16 sanction." Martin v. Giordano, 185 F.Supp.3d 339, 354 (E.D.N.Y. 2017) (quotations omitted).
Where, as here, a pro se plaintiff has seemingly lost interest in prosecuting his case, his claims are appropriately dismissed pursuant to both Rule 41(b) and Rule 16(f)(1)(C). See, e.g., Walters v. City of New York, 2022 WL 4031425, at *2 (S.D.N.Y. Sept. 2, 2022) (dismissing without prejudice where plaintiff "stopped showing up to conferences" and "has not responded to any of the Court's recent orders"), motion for relief from judgment denied, 2023 WL 171887 (S.D.N.Y. Jan. 12, 2023); Davis v. City of New York, 2019 WL 7842400, at *3 (E.D.N.Y. Dec. 3, 2019) (recommending dismissal with prejudice where plaintiff "failed to appear at three pretrial conferences and failed to obey three separate court orders," including an order to show cause why the case should not be dismissed), report and recommendation adopted, 2020 WL 103525 (E.D.N.Y. Jan. 9, 2020).
Analysis
All of the factors listed above weigh in favor of dismissing this action pursuant to Rule 41(b).
The first factor - the duration of plaintiff's failure to pursue his claims - weighs in favor of dismissal because plaintiff was required to further amend his complaint by March 5, 2023 - almost five months ago - and has failed to do so. He was reminded again on March 14, 2023 - at which point his amendment deadline was extended to March 28, 2023 - and then, on April 12, 2023, was ordered to show cause why his claims should not be dismissed for failure to do so. During part of that time, he remained in communication with the Court (filing his last discovery motion on March 10, 2023), but failed to comply with the Court's directive that he further amend his complaint. Since March 10, moreover, he has failed to participate in these proceedings in any capacity.
Courts in this Circuit have historically dismissed actions with analogous procedural delays. See, e.g., Brow v. City of New York, 391 Fed.Appx. 935, 937 (2d Cir. 2010) (summary order) (affirming dismissal after nearly six months of delay); Ruzsa v. Rubenstein & Sendy Attys at L., 520 F.3d 176, 177 (2d Cir. 2008) (upholding dismissal where party caused a seven-month delay); Folk v. Barton, 2016 WL 8993874, at *2 (S.D.N.Y. Dec. 2, 2016) (recommending dismissal where pro se plaintiff caused a three-month delay), report and recommendation adopted, 2017 WL 2191620 (S.D.N.Y. May 17, 2017).
The second factor looks to whether plaintiff was given notice that further inaction would result in dismissal of his case. This factor also favors dismissal, given that this Court's orders dated January 13, March 14, and April 12, 2023 all provided notice to plaintiff that his failure to comply with this Court's amendment order or otherwise pursue this action could result in dismissal. See Hunter v. New York State Dep't of Corr. Servs., 515 Fed.Appx. 40, 43 (2d Cir. 2013) (affirming dismissal where plaintiff received "at least two notices that her action could be dismissed for a failure to prosecute"). Here, plaintiff continued (for a time) communicating with the Court regarding other matters, suggesting that his failure further amend his complaint was a conscious choice not to comply.
The third factor - prejudice to the defendants - may be presumed where the plaintiff has unreasonably delayed pursuing his case. See Shannon, 186 F.3d at 195 (defendant suffers prejudice when "delay by one party increases the likelihood that evidence in support of the other party's position will be lost and that discovery and trial will be made more difficult").
The fourth factor calls for balancing this Court's interest in managing its docket against plaintiff's interest in receiving a fair chance to be heard. Dismissing the case without prejudice fairly weighs both interests. Should plaintiff wish to re-file his claims, which arose in January and February of 2021, see Am. Compl. at 6, and are asserted pursuant to 42 U.S.C. § 1983, he will still have sufficient time within the applicable three-year statute of limitations to do so. Thrall v. Cent. New York Reg'l Transp. Auth., 399 Fed.Appx. 663, 666 (2d Cir. 2010) (dismissal without prejudice serves "the district court's need to clear its calendar without unduly penalizing a pro se litigant for failing to comply with a scheduling order").
The fifth factor also weighs in favor of dismissal. Because plaintiff has failed to comply with multiple court orders for almost five months, only dismissal would effectively address his failure to prosecute. See Hunter, 515 Fed.Appx. at 43 (affirming Rule 41(b) dismissal in part because of "plaintiff's inactivity, for over seven months, in response to defendant's motion for summary judgment"); Robinson v. Healthfirst of NY & NJ, 2017 WL 3267740, at *3 (S.D.N.Y. July 31, 2017) (there was "no reason to believe a lesser sanction would be efficacious" where plaintiff "failed to appear in the face of an explicit warning that her case would be dismissed").
The Rule 16(f)(1)(C) factors - which substantially overlap with those discussed above -also favor dismissal. Plaintiff's failure to further amend his complaint appears to have been willful; lesser sanctions would likely be ineffective; the period of noncompliance is now approaching five months; and plaintiff has been "warned of the consequences of noncompliance." Funk, 861 F.3d at 366.
Conclusion
For the reasons stated above, I recommend, respectfully, that this action be DISMISSED, without prejudice, pursuant to Rules 41(b) and 16(f)(1)(C). Additionally, I recommend that the Clerk of Court be directed to close plaintiff's second action, docketed at No. 22-CV-2940, which was previously kept open for administrative purposes.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). 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). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. John P. Cronan, United States District Judge, at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Cronan. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).