Opinion
17cv5103 (GBD) (DF)
02-04-2021
RAFAEL RIVERA, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
Mr. Rafael Rivera, Reg # 92319-054, Defense counsel (via ECF).
Mr. Rafael Rivera, Reg # 92319-054, Defense counsel (via ECF).
TO THE HONORABLE GEORGE B. DANIELS, U.S.D.J.:
REPORT AND RECOMMENDATION
DEBRA FREEMAN, United States Magistrate Judge.
This Court having ordered pro se plaintiff Rafael Rivera (“Plaintiff”) to show cause by February 21, 2020, why this Court should not recommend that this case be dismissed, for failure to prosecute (see Order To Show Cause, dated February 4, 2020 (Dkt. 61)); and Plaintiff, to this date, having made no submission to the Court in response to the Court's Order To Show Cause, despite a significant amount of time having passed since the stated deadline; and defendant United States of America (“Defendant”) having filed a motion on October 20, 2020 to dismiss the Complaint, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, for failure to prosecute; and Plaintiff having also failed to respond to Defendant's motion or to communicate with the Court in any way since that motion was filed; I respectfully recommend, for these reasons and the reasons stated in this Court's Order To Show Cause (a copy of which is attached hereto for reference), that Defendant's unopposed motion to dismiss (Dkt. 63) be granted, and that this action be dismissed without prejudice and the case closed on the Docket of the Court.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, Plaintiff shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, should be filed with the Court in accordance with the attached instructions, and directed to the Honorable George B. Daniels. Any requests for an extension of time for filing objections must be directed to Judge Daniels. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
The Clerk of Court is directed to mail a copy of this Report and Recommendation, together with the attached Order To Show Cause and Notice regarding Pro Se Filings, to Plaintiff, at the address listed on the Docket and shown below.
ORDER TO SHOW CAUSE
This action, brought by pro se plaintiff Rafael Rivera (“Plaintiff') under 42 U.S.C. § 1983, has been referred to this Court by the Honorable George B. Daniels, U.S.D.J., for general pretrial supervision. At the time Plaintiff commenced this action in 2017, he was incarcerated, but, to this Court's understanding, he was then released to a halfway house in 2018 and has since completed his sentence. Despite his release from custody, though, Plaintiff has failed to appear twice in a row for case management conferences scheduled by this Court, and, for the last several weeks, neither counsel for defendant the United States (“Defendant”) nor this Court have been able to locate him.
Under the circumstances, this Court is considering recommending to Judge Daniels that this action be dismissed for failure to prosecute. Before doing so, however, this Court will afford Plaintiff an opportunity to address his failures to appear and to update the Court with his current contact information. As set forth below, Plaintiff is directed to respond to this Order no later than February 21, 2020.
BACKGROUND
When Plaintiff did not appear for a case management conference scheduled by this Court for December 18, 2019 (Dkt. 58), this Court issued a written Order on January 7, 2020, rescheduling the conference for January 17, 2020, and cautioning Plaintiff that he had an obligation to keep the Court informed of any change in his address or other contact information, so that the Court's Docket for this action would reflect his accurate contact information and the Court would be able to supervise the case. (Dkt. 59.) In its January 7 Order, this Court instructed Plaintiff to notify the Court's Pro Se Office, in writing, if he had moved or been relocated. (Id.) This Court also expressly warned Plaintiff that his failure to keep the Court apprised of his current contact information could result in sanctions, including the dismissal of his claims:
Plaintiff is further cautioned that if he fails to update his contact information and this Court is therefore unable to reach him, or if he again fails to appear for a conference scheduled by this Court, or if he fails to participate in the discovery process in a meaningful way so as to allow this case to move forward, then this Court may recommend that this case be dismissed without prejudice for failure to prosecute.(Id.)
Plaintiff failed to appear on January 17, 2020, for the rescheduled conference, and, at that time, Defendant's counsel informed this Court that she had been unable to reach Plaintiff, and believed that he had left the halfway house where he had been residing, but had provided no forwarding address. This Court asked Defendant's counsel to submit a letter, explaining in detail the efforts she had made to reach Plaintiff, and counsel duly filed such a letter on January 22, 2020. (Dkt. 60.) In her letter, counsel states that she left Plaintiff a voicemail message in November 2019, to which he did not respond, and that, when she tried to send certified mail to the last address that Plaintiff had provided to the Court (i.e., the halfway house address), that mail was returned. (See id.)
After mail sent to Plaintiff by this Court was also returned as undeliverable, the Chambers of the undersigned has itself made repeated, but unsuccessful efforts to contact Plaintiff. Those efforts have included calling and - at the request of the halfway house - faxing it a request for Plaintiffs new address. To date, this Court has been unable to locate Plaintiff or to obtain new contact information for him.
DISCUSSION
A plaintiff has a general obligation to prosecute his case diligently, and, if he fails to do so, the Court may dismiss the action under Rule 41(b) of the Federal Rules of Civil Procedure, for failure to prosecute. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). “A plaintiffs lack of diligence alone is enough for dismissal.” West v. City of New York, 130 F.R.D. 522, 526 (S.D.N.Y. 1990) (citation omitted). The Court need not wait for a motion to dismiss, see Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962), and is not required to provide notice of the dismissal, see West, 130 F.R.D. at 524. Indeed, because district courts are “necessarily vested” with the control required “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases, ” this Court may even dismiss an action with prejudice, where a plaintiff fails to prosecute his case. Link, 370 U.S. at 630-31. Further, “all litigants, including pro ses, have an obligation to comply with court orders.” Agiwal v. Mid Island Mortgage Corp., 555 F.3d 298, 302 (2d Cir. 2009) (citing Minotti v. Lensink, 895 F.2d 100, 103 (2d Cir. 1990) (internal quotation marks omitted)).
In deciding whether to dismiss an action for failure to prosecute, the Court should consider: “(1) the duration of plaintiffs failures or non-compliance; (2) whether plaintiff had notice that such conduct would result in dismissal; (3) whether prejudice to the defendant is likely to result; (4) whether the court balanced its interest in managing its docket against plaintiff's interest in receiving an opportunity to be heard; and (5) whether the court adequately considered the efficacy of a sanction less draconian than dismissal.” Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 63 (2d Cir. 2000) (citing Nita v. Conn. Dep't of Envtl. Prot., 16 F.3d 482, 485 (2d Cir. 1994)). “Generally, no one factor is dispositive, ” Williams v. Kelly, No. 11cv9607 (PAC) (KNF), 2014 WL 630654, at *3 (S.D.N.Y. Feb. 18, 2014) (citing Nita, 16 F.3d at 485), and the sanction of dismissal should be considered “in light of the record as a whole, ” United States ex rel. Drake v. Norden Systems, Inc., 375 F.3d 248, 254 (2d Cir. 2004) (citation omitted).
In this case, this Court takes note of Plaintiff s pro se status, and of the fact that he has previously taken certain steps to prosecute his case, including, inter alia, by participating in telephone conferences while he was incarcerated (see Dkts. 21, 23), by providing the Court with change-of-address notifications when he was transferred to different facilities (see Dkts. 10, 13, 27, 32), and by filing an Amended Complaint (see Dkt. 33). Plaintiff, however, filed no opposition to Defendant's August 24, 2018 motion to dismiss his Complaint, despite having been directed by this Court to do so by November 5, 2019 (see Dkt. 40), and, indeed, this Court has heard nothing at all from Plaintiff since June of 2018 - over seven months ago - when he informed the Court that he had been released to the halfway house (Dkts. 27, 32).
This Court cannot meaningfully supervise this case if Plaintiff, with no explanation, fails to appear in court when directed to do so. Moreover, without any communication from Plaintiff, this Court cannot ascertain whether special circumstances of some type are hindering his ability to participate in this case, at this time. See Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 666 (2d Cir. 1980) (noting that, if plaintiff had “been frustrated in good faith efforts to comply” with his obligations in litigation, then his argument that dismissal was too harsh might have been colorable), or if he has consciously decided to forego further participation in court proceedings.
This Court has already given Plaintiff notice of the fact that he could face sanctions for a failure to participate in Court-ordered conferences, including the possible sanction of dismissal. (See Dkt. 59.) Nonetheless, before this Court recommends the dismissal of this action for failure to prosecute, it will consider any explanation that Plaintiff wishes to provide for his failure to appear in court. Plaintiff, however, is cautioned that, if he fails to respond at all to this Order To Show Cause, then this Court will likely recommend to Judge Daniels that the action be dismissed. Moreover, although this Court would recommend that a dismissal be without prejudice, Plaintiff should be aware that his Section 1983 claims may be barred by the statute of limitations, if he tries to reassert them in the future.
Given the severity of the sanction of dismissal, this Court has considered whether any lesser sanction might be sufficient to ensure Plaintiffs appearance when required, but notes that its explicit prior warning to Plaintiff of potential sanctions did not prove effective in securing his appearance. While it is, of course, possible that Plaintiff was never aware of the Court's Scheduling Orders because he was not receiving his mail, this Court stresses again that it simply cannot supervise a case where the plaintiff cannot be contacted. Under the circumstances, and if Plaintiff does not avail himself of the opportunity now being provided by this Court to explain the basis for his absences, a dismissal under Rule 41(b) may be the most appropriate result.
CONCLUSION
For the reasons stated above. Plaintiff is directed to show cause, in writing, no later than February 21, 2020, why this Court should not recommend that Judge Daniels dismiss this action without prejudice for failure to prosecute.
Any response by Plaintiff to this Order should be delivered, either personally or by mail, to the Court's Pro Se Office, Thurgood Marshall United States Courthouse, 40 Centre Street, Room 105, New York, NY 10007. If Plaintiff needs assistance in understanding any of the procedural rules of this Court, or any aspect of this Order, Plaintiff is encouraged to contact the Pro Se Office. The telephone number for that Office is (212) 805-0175.
Additionally, Plaintiff is advised that a legal Clinic is now open in this District to assist people who are parties in civil cases and do not have lawyers. The Clinic is run by a private organization called the New York Legal Assistance Group; it is not part of, or run by, the Court (and, among other things, therefore cannot accept filings on behalf of the Court, which must still be made by any unrepresented party through the Court's Pro Se Office). The Clinic is also located in the Courthouse at 40 Centre Street - in Room LL22, which is just inside the Pearl Street entrance to that Courthouse. The Clinic is open on weekdays from 10 a.m. to 4 p.m., except on days when the Court is closed. An unrepresented party can make an appointment in person or by calling (212) 659-6190. If Plaintiff believes that he would benefit from the assistance of the Clinic, then he is encouraged to make an appointment.
SO ORDERED
Notice to Plaintiff Regarding How To Make Pro Se Filings During the Period of the COVID-19 Outbreak:
The Court's Pro Se Office is not open for in-person visits at this time. Accordingly, until further notice by the Court, any filings by Plaintiff, including any response to this Order, should be made in one of the following three ways:
(1) By email. This is the fastest way to file documents at this time. To file by email:
(a) Plaintiff must sign the document, either by signing before scanning or by typing his name after an s-slash, like this: “ Rafael Rivera, ”
(b) the document must include Plaintiff's name, address, phone number, and email address (if available), and
(c) the subject line of the email must state that it is a pro se filing, and include the case number, as follows: “Pro Se Filing - 17cv05103 ”
The response may then be emailed to the following email address: TemporaryProSeFiling@nysd.uscourts.gov Documents submitted by email that do not comply with these instructions will be disregarded.
(2) By Drop Box. If Plaintiff is unable to email the materials he wishes to file, then he may drop them off at the courthouse. The drop box is located in the lobby of the 200 Worth Street entrance to the Daniel Patrick Moynihan (“DPM”) Courthouse, next to the security station, and is available 24 hours a day and 7 days a week to drop off filings. The Clerk's Office will retrieve drop box filings during the hours of 8:30 a.m. to 4:00 p.m., Monday through Friday. The materials should be clearly marked with Plaintiff's name and the case number.
(3) By mail. Plaintiff may still mail any papers to be filed to the DPM Courthouse, at the following address:
Pro Se Intake Unit U.S. Courthouse 500 Pearl Street New York, NY 10007.