Opinion
Civil Action 22 Civ. 1302 (JPC) (SLC)
11-22-2022
DAVID K. PORATH, Plaintiff, v. CITY OF NEW YORK, DIRECTOR, BELLEVUE SHELTER SYSTEM, and N.Y.S. PAROLE OFFICER AKANEME, Defendants.
REPORT & RECOMMENDATION
SARAH L. CAVE, MAGISTRATE JUDGE
On February 15, 2022, pro se Plaintiff David K. Porath, while detained on Rikers Island (“Rikers”) on a parole violation, brought this action under 42 U.S.C. § 1983 and New York law, alleging that Defendants violated his constitutional rights and that he was denied services available to the homeless because he was erroneously labeled a sex offender. (See ECF No. 2 (the “Complaint”)). In the Complaint, Mr. Porath listed Rikers' West Facility as his address. (Id. at 2). On February 16, 2022, the Honorable Laura Taylor Swain granted Mr. Porath's request to proceed in forma pauperis ("IFP"). (ECF No. 4 (the “February 16, 2022 Order”)). In the February 16, 2022 Order, Judge Swain advised Mr. Porath that “it is [his] obligation to promptly submit a written notification to the Court if [his] address changes, and the Court may dismiss the action if [he] fails to do so." (Id. at 2).
On February 23, 2022, this case was reassigned to the Honorable John P. Cronan. (ECF min. entry Feb. 23, 2022). On March 7, 2022, Judge Cronan issued an order of service directing, inter alia, the Clerk of Court to issue a summons, mail an information package to Mr. Porath, and deliver to the U.S. Marshals Service all paperwork necessary for the Marshals to effect service of the Complaint. (ECF No. 6). On March 14, 2022, the Clerk of Court mailed an information package to Mr. Porath. (ECF No. 8 (the “Information Package”)). The Information Package included instructions for pro se litigants and specifically advised Mr. Porath:
If your contact information changes, it is your responsibility to notify the court in writing, even if you are incarcerated and transferred to another facility or released from custody.... Your case could be dismissed if you do not notify the court of an address change.(Id. at 2 (emphasis original)).
On April 14, 2022, before service of the Complaint, Mr. Porath filed an amended complaint. (ECF 14 (the “Amended Complaint”)). In the Amended Complaint, Mr. Porath alleged, inter alia, that he “will be released back on parole on or about 6/29/22[.]” (Id. at 8).
In an undated letter mailed on April 26, 2022 and docketed on May 3, 2022, Mr. Porath informed the Court that (i) his address changed to the Ulster Correctional Facility, and (ii) he had “received a tentative release date of 6/23/22[.]” (ECF No. 16 at 1-2). By letter dated May 4, 2022 and docketed on May 10, 2022, Mr. Porath informed the Court that his address changed to Governeur Correctional Facility (“GCF”). (ECF No. 17 at 1). On May 20, 2022, the Court issued an amended order of service, directing the Clerk of Court to provide the U.S. Marshals Service with the information and documents necessary to effect service of the Amended Complaint. (ECF No. 18).
On June 29, 2022, Defendant City of New York (the “City”) requested an order confirming that the City was not required to respond to the original Complaint. (ECF No. 22). On June 30, 2022, the Court granted the City's request, and requested that the City waive service of the Amended Complaint. (ECF No. 22 (the “June 30 Order”)). Per the Court's directive, the June 30
Order was mailed to Mr. Porath at his updated address of record, i.e., GCF. (Id.; see ECF min. entry July 1, 2022). On July 8, 2022, the City waived service, making its answer to the Amended Complaint due by September 6, 2022. (ECF No. 24).
On July 18, 2022, the June 30 Order was returned as undeliverable, with a note indicating Mr. Porath was “not at this facility.” (ECF min. entry July 18, 2022). On September 14, 2022, the City advised the Court of its understanding that Mr. Porath “was released from State custody on June 29, 2022[,]” and requesting “an order (i) directing [Mr. Porath] to update his address within 30 days and warning that failure to comply will result in dismissal of this action; and (ii) adjourning the deadline for Defendants the City of New York and Bellevue Men's Shelter System to answer or otherwise respond to the Complaint until thirty (30) days after [Mr. Porath] complies with that order.” (ECF No. 25 (the “Request”)).
On September 15, 2022, the Court ordered Mr. Porath to update his address of record by October 17, 2022. (ECF No. 26 at 2 (the “September 15, 2022 Order”)). The Court warned Mr. Porath that his failure to comply may result in the Court recommending dismissal of this action without prejudice under Fed.R.Civ.P. 41(b) for failure to prosecute. (Id. at 2). In the September 15, 2022 Order, the Court also adjourned Defendants' deadline to respond to the Amended Complaint until 30 days after Mr. Porath provided the Court with his updated address. (Id.) The September 15, 2022 Order was mailed to Mr. Porath at GCF. (Id.; see ECF min. entry September 16, 2022).
On October 5, 2022, Defendant Parole Officer Akaneme (“Akaneme”), an employee of the New York State Department of Corrections and Community Supervision, appeared through New York State Attorney General Letitia James. (ECF No. 29). That same day, Akaneme requested an extension of time to respond to the Amended Complaint. (ECF No. 30). Akaneme advised the Court that, “based on a telephone conversation with a supervisor at [Mr. Porath]'s assigned parole office, [Mr. Porath] was released on [June 29, 2022], but absconded from parole supervision on July 28, 2022.” (Id. at 1). Akaneme further advised that “[p]arole revocation charges and a parole warrant were issued[,]” and that, “[t]o date, [Mr. Porath]'s whereabouts remain unknown.” (Id.) On October 6, 2022, the Court ordered that, pursuant to the September 15, 2022 Order, Akaneme shall respond the Amended Complaint within 30 days after Mr. Porath provides the Court with his updated address. (ECF No. 31).
To date, Mr. Porath has not responded to the September 15, 2022 Order or otherwise communicated with the Court. On October 11, 2022, the copy of the September 15, 2022 Order that was mailed to Mr. Porath was returned as undeliverable. (ECF min. entry October 11, 2022).
Under Rule 41(b) of the Federal Rules of Civil Procedure, a district court may dismiss an action sua sponte for failure to prosecute after notifying the plaintiff. See Murray v. Smythe, 18 Civ. No. 4705 (KMK), 2020 WL 4482644, at *2 (S.D.N.Y. Aug. 3, 2020) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)). The Court must consider the duration of the plaintiff's failure to comply with court orders, whether he received notice that further delay would result in dismissal, defendants' prejudice from further delay, the efficacy of lesser sanctions, and the balance between “alleviat[ing] court calendar congestion” and protecting the plaintiff's right to due process. Caussade v. United States, 293 F.R.D. 625, 629 (S.D.N.Y. 2013) (quoting Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009)). “‘There is no fixed period of time that must elapse before a plaintiff's failure to prosecute becomes substantial enough to warrant dismissal,' but ‘[d]elays of several months' have been found sufficient.” Farion v. Ezzo, 19 Civ. 5477 (LJL), 2020 WL 5578294, at *1 (SDNY Sept. 17, 2020) (quoting Caussade v. United States, 293 F.R.D. 625, 629 (S.D.N.Y. 2013)). “District courts in this Circuit have recognized that ‘the failure to maintain [a current address] with the Court is a ground for failure to prosecute' because ‘[t]he case cannot proceed' without such information.” Cabrera v. Brann, No. 21 Civ. 780 (JMF), 2021 WL 1549818, at *1 (S.D.N.Y. Apr. 20, 2021) (quoting Pratt v. Behari, No. 11 Civ. 6167 (JGK), 2012 WL 1021660, at *1 (S.D.N.Y. Mar. 26, 2012)); see Campbell v. New York City, No. 19 Civ. 5431 (JMF), 2020 WL 469313, at *1 (S.D.N.Y. Jan. 29, 2020) (“In light of the Court's inability to proceed without updated contact information for Plaintiff, dismissal of the case is warranted.”).
The Court concludes that dismissal of this case is warranted. Mr. Porath has been advised multiple times of his obligation to notify the Court if his address changes and that failure to do so may result in dismissal of his case. (See ECF Nos. 4 at 2; 8 at 2; 26 at 2). Despite these warnings, however, Mr. Porath has not updated his address since his release from GCF, which occurred in June 2022. (ECF Nos. 14 at 8; 16 at 2; 25 at 1; 29 at 1). Mr. Porath was also warned that failure to respond to the September 15, 2022 Order could result in a recommendation of dismissal. (ECF No. 26 at 2). To date, Mr. Porath has not responded to or otherwise contacted the Court regarding the September 15, 2022 Order. Indeed, Mr. Porath has not communicated with the Court at all since his letter on May 4, 2022-almost six months ago.
Accordingly, “in light of the Court's inability to proceed without updated contact information for [Mr. Porath],” I respectfully recommend that this action be dismissed without prejudice pursuant to Rule 41(b). Cabrera, 2021 WL 1549818, at *1 (finding that, “given [the] Plaintiff's pro se status, . . . dismissal without prejudice is more appropriate than dismissal with prejudice”).
Defendants shall promptly serve a copy of this Report and Recommendation on Mr. Porath at his address of record, and file proof of service on the docket.
The Clerk of Court is respectfully directed to mail this Report and Recommendation to Mr. Porath at the address below.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from 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) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Cronan.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Mr. Porath does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, he may request copies from the Law Department. See Local Civ. R. 7.2.