Opinion
17 Civ. 2976 (AT) (GWG)
03-04-2019
CURTIS NICHOLS, et al., Plaintiffs, v. N.Y.C.D.O.C.S JOSEPH PONTE, et al. Defendants.
REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
I. FACTS
This action was originally brought by sixteen plaintiffs alleging that in April 2017, defendants used excessive force against them by spraying the chemical agent MK-9 into their dorm on Rikers Island, where they were detained. See Compl. In June 2017, the district judge dismissed nine of the plaintiffs without prejudice, pursuant to Fed. R. Civ. P. 41(b), for failing to comply with an earlier order directing them to submit IFP applications, prisoner authorizations, declarations, and updated addresses. Order, filed June 30, 2017 (Docket # 28) ("June 2017 Order"). The June 2017 Order also instructed the clerk to add Raeman Heck to the case as a plaintiff, inasmuch as he had submitted a declaration, IFP application, and prisoner authorization, but had not been included in the original complaint. Id. Thus, following the June 2017 Order, there were eight plaintiffs in the case: Curtis Nichols, Wesley Johnson, Angel Abrams, Alfonso Adjei, Leonard Freeman, Larry McNair, Raemen Heck and Brandon Robertson.
While seventeen names are provided on the list of plaintiffs included in the complaint, see Complaint, filed Apr. 24, 2017 (Docket # 2) ("Compl."), 2, both a "Curtis Nicholas" and a "Curtis Nichols" are listed with the same inmate identifier number.
Since that time, the Clerk has mailed a number of orders to the plaintiffs in this case. Mailings that were sent to the addresses the plaintiffs provided have been repeatedly returned as undeliverable.
The first return of a mailing to Curtis Nichols was Docket # 64, which was mailed on December 26, 2018. The envelope was marked "RTS- Paroled." Another mailing, Docket # 66, was mailed on January 9, 2019, and was returned with the envelope marked "RTS-Undeliverable." Another mailing, Docket # 68, was mailed on February 5, 2019, and was returned with the envelope marked "RTS Unable to Forward." The New York City Department of Corrections website does not contain a listing for the "B&C" number Nichols provided and shows no listing for his name.
The first return of a mailing to Wesley Johnson was the Information Package, which was mailed on August 28, 2017. The envelope was marked "RTS, Released." Another mailing, Docket # 66, was mailed on January 9, 2018, and was returned with the envelope marked "RTS-Paroled." Another mailing, Docket # 68, was mailed on February 5, 2019, and was returned with the envelope marked "RTS-No Longer Here." The New York State Department of Correctional Services website shows that Johnson was released from custody on August 31, 2017.
The first return of a mailing to Angel Abrams was Docket # 66, which was mailed on January 9, 2019. The envelope was marked "RTS-Not Deliverable, Unable to Forward, No such Inmate in System." Another mailing, Docket # 68, was mailed on February 5, 2019, and was returned with the envelope marked "RTS-Insufficient Address Unable to Forward." The New York City Department of Corrections website does not contain a listing for the "B&C" number Abrams provided and shows no listing for his name.
The first return of a mailing to Alfonso Adjei was Docket # 64, which was mailed on December 26, 2018. The envelope was marked "RTS-Not Deliverable, Unable to Forward." The New York State Department of Correctional Services website shows that Adjei was released from custody on March 29, 2018.
The first return of a mailing to Leonard Freeman was Docket # 36, which was mailed on August 23, 2017. The envelope was marked "RTS-Released." Another mailing, Docket # 64, was mailed on December 26, 2018, and was returned with the envelope marked "RTS-Released." The New York State Department of Correctional Services website shows that Freeman was released from custody on August 7, 2018.
The form complaint that plaintiffs filled out contained a warning that failure to supply the Clerk's Office with new addresses could result in dismissal, see Compl. at 6, as did the "Instructions for Litigants Who Do Not Have Attorneys" that was mailed to all plaintiffs with their information packages.
The remaining three defendants are Larry McNair, Raemen Heck and Brandon Robertson. McNair never filed or submitted a letter in this case showing a change of address, and thus a number of mailings (Docket ## 66 and 68) that were sent to the address he originally provided have been returned. Nonetheless, we have determined from other cases filed by McNair that his current address is as follows: Larry McNair
2070 Seventh Avenue, #5S
New York, NY 10027
Raemen Heck was also the subject of a returned mailing (Docket # 64). However, he recently provided a current address (Docket # 69).
Finally, while Brandon Robertson was the subject of some returned mailings (Docket ## 64 and 66), he appears in the New York State Department of Correctional Services website at the following address: Brandon Robertson
DIN 15-R-0891
Ulster Correctional Facility
750 Berme Road
P.O. Box 800
Naponoch, NY 12458-0800.
II. DISCUSSION
Federal Rule of Civil Procedure 41(b) provides, in relevant part, "[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 claim against it." While the text of Rule 41(b) addresses only the situation in which a defendant moves for dismissal, "it is unquestioned that Rule 41(b) also gives the district court authority to dismiss a plaintiff's case sua sponte for failure to prosecute." LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) ("The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an 'inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.")). Unless the court specifies otherwise, Rule 41(b) provides that dismissal "operates as an adjudication on the merits." However, because "dismissal with prejudice is 'a harsh remedy to be utilized only in extreme situations,'" Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir.1982) (quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir.1972)); see generally LeSane, 239 F.3d at 209 ("pro se plaintiffs should be granted special leniency regarding procedural matters"), dismissal of the complaint should be without prejudice, Coleman v. Doe, 2006 WL 2357846, at *3-4 (E.D.N.Y. Aug. 14, 2006) (dismissal without prejudice where pro se plaintiff could not be reached at the address he provided) (citation omitted); Whitaker v. N.Y.C. Police Dep't, 1989 WL 37678, at *1 (S.D.N.Y. Apr. 11, 1989) (same).
While courts typically apply a number of factors in evaluating the propriety of a dismissal for failure to prosecute, see Martens v. Thomann, 273 F.3d 159, 180 (2d Cir. 2001), it is sufficient here to say that this case cannot proceed as to any plaintiff without his participation, and the plaintiffs for whom the Court lacks addresses have provided no method by which the Court can inform them of their obligations in this case or its outcome. 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. See, e.g., Smith v. Corizon Health Servs., 2016 WL 3365320, at *1-2 (S.D.N.Y. May 9, 2016); Austin v. Lynch, 2011 WL 5924378, at *2 (S.D.N.Y. Nov. 29, 2011); Abreu-Guzman v. Lempke, 2011 WL 4862959, at *2 (S.D.N.Y. Oct. 13, 2011); Grace v. New York, 2010 WL 3489574, at *2 (S.D.N.Y. Sept. 7, 2010); Coleman v. Doe, 2006 WL 2357846, at *2-3; Dong v. United States, 2004 WL 385117, at *3 (S.D.N.Y. Mar. 2, 2004); Ortiz v. United States, 2002 WL 1492115, at *2 (S.D.N.Y. July 11, 2002); Hibbert v. Apfel, 2000 WL 977683, at *2-3 (S.D.N.Y. July 17, 2000).
II. CONCLUSION
For the foregoing reasons, this case should be dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) as to plaintiffs Curtis Nichols, Wesley Johnson, Angel Abrams, Alfonso Adjei and Leonard Freeman.
PROCEDURE FOR FILING 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 have fourteen (14) days including weekends and holidays from service of this Report and Recommendation to serve and file any objections. See also Fed. R. Civ. P. 6(a), (b), (d). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Analisa Torres at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Torres. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010). Dated: March 4, 2019
New York, New York
/s/_________
GABRIEL W. GORENSTEIN
United States Magistrate Judge Copy sent to: Larry McNair
2070 Seventh Avenue, #5S
New York, NY 10027 Brandon Robertson
DIN 15-R-0891
Ulster Correctional Facility
750 Berme Road
P.O. Box 800
Naponoch, NY 12458-0800 Raemen Heck
NYSID: 02633197M
B&C No.3001800628
125 White Street
New York, NY 10013