Opinion
1:20-cv-09405 (JPC) (SDA)
11-03-2021
Cyril Sheppard, Plaintiff, v. Department Of Corrections et al., Defendants.
TO THE HONORABLE JOHN P. CRONAN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
STEWART D. AARON UNITED STATES MAGISTRATE JUDGE
For the reasons set forth below, I respectfully recommend that this action be DISMISSED WITHOUT PREJUDICE for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b).
PROCEDURAL HISTORY
On November 9, 2020, this action was severed from Lee v. Department of Corrections et al., 20-cv-08407. (11/9/2020 Order, ECF No. 1; Compl., ECF No. 2.) On November 24, 2020, the plaintiff in Lee filed an Amended Complaint, which also was filed in this action. (Am. Compl, ECF No. 4; see also Order to Amend, ECF No. 15 (discussing relevant background).) On February 1, 2021, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis. (Order, ECF No. 13.) On February 3, 2021, the Court entered an Order to Amend, finding that the Amended Complaint failed to state a claim and giving Plaintiff 60 days to file a Second Amended Complaint. (Order to Amend at 4-6.) Plaintiff filed a Second Amended Complaint on March 17, 2021. (SAC, ECF No. 17.)
In May 2021, Plaintiff was released from custody and, at the Court's direction, Defendants filed a letter on June 30, 2021 with Plaintiff's updated contact information. (See 6/21/2021 Order,
ECF No. 27; Defs.' 6/30/2021 Letter, ECF No. 29.) The same day, the Court scheduled an Initial Pretrial Conference, to be held via telephone, for August 5, 2021. (6/30/2021 Order, ECF No. 30.) A copy of the Court's Order was mailed to Plaintiff at the address indicated on the docket. (See 6/30/2021 docket text entry.) Plaintiff failed to appear for the August 5, 2021 conference. (See 8/5/2021 Order, ECF No. 32.) In a written Order issued following the conference, the Court reminded Plaintiff that it was his responsibility to comply with Court Orders and diligently prosecute his case and that failure to do so was ground for dismissal. (See id. at 1-2.) The Court scheduled another telephone conference for September 15, 2021 at 11:00 a.m. and warned Plaintiff that failure to appear would result in a recommendation to District Judge Cronan that this action be dismissed without prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). (See id. at 2.) A copy of the Court's Order was mailed to Plaintiff. (See 8/5/2021 docket text entry.)
Plaintiff did not appear for the September 15, 2021 conference at the scheduled time. However, at approximately 11:30 a.m., while the Court was conducting a telephone conference in another case, Plaintiff dialed in to the Court's conference line. (See 9/15/2020 Order, ECF No. 33.) The Court informed Plaintiff that it would reschedule the conference for October 27, 2021 at 11:00 a.m., a date and time that Plaintiff indicated he was available. The Court again warned Plaintiff that failure to appear for the telephone conference may result in the imposition of sanctions up to and including a recommendation that his case be dismissed for failure to prosecute. (See id.) A copy of the Court's Order was mailed to Plaintiff. (See 9/15/2021 docket text entry.) Plaintiff did not appear for the October 27, 2021 conference.
LEGAL STANDARDS
Federal Rule of Civil Procedure 41(b) states that a defendant may move to dismiss an action or any claim against it “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order.” Fed.R.Civ.P. 41(b). However, the United States Supreme Court has determined that the language of Rule 41 does not restrict the Court's power to act on its own and dismiss an action absent a motion. See Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962); see also Harding v. Goord, 135 Fed.Appx. 488, 488 (2d Cir. 2005) (“Although not explicitly authorized by Rule 41(b), a court may dismiss a claim for failure to prosecute sua sponte.”) (citation omitted); White v. Westchester Cnty., No. 19-CV-03604 (KMK), 2020 WL 7323422, at *1 (S.D.N.Y. Dec. 11, 2020) (“it has long been recognized that a district court has the inherent authority to dismiss for failure to prosecute sua sponte.”) (citation omitted). Unless the dismissal order states otherwise, a dismissal under Rule 41(b) “operates as an adjudication on the merits.” Link, 370 U.S. at 630.
While “[d]istrict courts have discretion to effect dismissal pursuant to Rule 41(b)[, ]” Virola v. Entire GRVC Dep't of Mental Health Hygiene Servs., No. 12-CV-01005 (ER), 2014 WL 793082, at *2 (S.D.N.Y. Feb. 21, 2014) (citing cases), “[t]he Second Circuit has cautioned . . . that [such discretion] should be exercised sparingly and only when the district judge is ‘sure of the impotence of lesser sanctions.'” Id. (quoting Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir. 1980)); see also Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009). In considering whether to dismiss a case under Rule 41, courts consider five factors: (1) the duration of plaintiff's failure to comply with court orders; (2) notice to plaintiff that failure to comply would result in dismissal; (3) possible prejudice to defendants from further delay; (4) the balance between the interest of managing the court's docket and the plaintiff's right to be heard; and (5) consideration of lesser sanctions. See Shannon v. Gen. Elec. Co., 186 F.3d 186, 193-94 (2d Cir. 1999). None of these factors is independently dispositive, and the Court reviews the dismissal in light of the record as a whole. See U.S. ex rel Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004).
DISCUSSION
Viewing the record as a whole, the Court finds that dismissal without prejudice is appropriate. Although Plaintiff attempted to appear for the September 15, 2021 telephone conference, he has failed to appear for two other telephone conferences over the course of several months, including the most recent one despite the Court's explicit warnings that failure to do so may result in a recommendation that his case be dismissed for failure to prosecute. Thus, the Court finds that the first two factors weigh in favor of dismissal. See, e.g., Yadav v. Brookhaven Nat'l Lab., 487 Fed.Appx. 671, 673 (2d Cir. 2012) (failure to prosecute for a “matter of months” may be sufficient to warrant dismissal); see also Gonzalez v. City of New York, No. 17-CV-01824 (JGK), 2018 WL 2269244, at *1 (S.D.N.Y. May 17, 2018) (“The plaintiff's failure to comply with the Court's orders in the preceding three months clearly warrants dismissal for failure to prosecute, especially in light of this Court's repeated reminders that the plaintiff risked dismissal of his case if he failed to comply with the orders.”).
The Court finds that the remaining factors also support dismissal, albeit without prejudice. There is no evidence that Plaintiff's delay has caused any prejudice to Defendants beyond the delay itself, yet “when a plaintiff's delay is ‘lengthy and inexcusable,' prejudice can be presumed.” See Bar-Levy v. Gerow, No. 18-CV-09454 (PMH), 2020 WL 7774297, at *3 (S.D.N.Y. Dec. 30, 2020). Moreover, Plaintiff has had ample time to participate and to be heard by the Court, but has not pursued this case. See Cayetano v. City of New York, No. 13-CV-01861 (LAK)
(JLC), 2013 WL 6097567, at *2 (S.D.N.Y. Nov. 20, 2013), report and recommendation adopted, 2015 WL 5514324 (S.D.N.Y. Sept. 17, 2015) (citing Hibbert v. Apfel, No. 99-CV-04246 (SAS), 2000 WL 977683, at *3 (S.D.N.Y. July 17, 2000) (“It is not the function of this Court to chase dilatory plaintiffs while other litigants in this district seek access to the courts.”)). However, “because Plaintiff's delay has not impacted the trial calendar, ” the Court finds that the fourth factor supports dismissal without prejudice, as opposed to adjudication on the merits. Virola, 2014 WL 793082, at *3 (citing Thrall v. Cent. New York Reg'l Transp. Auth., 399 Fed.Appx. 663, 666 (2d Cir. 2010)); see also Ortega v. Mutt, No. 14-CV-09703 (JGK), 2017 WL 1133429, at *2 (S.D.N.Y. Mar. 24, 2017) (finding lesser sanction of dismissal without prejudice 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”).
Finally, the Court finds that the fifth factor weighs in favor of dismissal, rather than lesser sanctions, because the case cannot proceed without Plaintiff's participation. However, due to Plaintiff's pro se status, ” the Court recommends that Plaintiff's claims be dismissed without prejudice. See Virola, 2014 WL 793082, at *3 (citing Lyell Theatre Corp., 682 F.2d at 43 (when imposed, the sanction of dismissal under Rule 41(b) “operates as an adjudication upon the merits, but may be without prejudice if so specified by the court imposing it” (citation and quotation marks omitted)); see also LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 208 (2d Cir. 2001) (Rule 41(b) dismissal with prejudice to be used with caution because “pro se plaintiffs should be granted special leniency regarding procedural matters”).
CONCLUSION
For the foregoing reasons, I respectfully recommend that this action be DISMISSED WITHOUT PREJUDICE. The Clerk of Court is respectfully requested to mail a copy of this Report and Recommendation to the pro se Plaintiff.
SO ORDERED.
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