Opinion
17 Civ. 8886 (PMH) (AEK)
05-04-2022
ANTOINE T. SIMMONS, Plaintiff, v. HEIDE MASON, et al., Defendants.
HONORABLE PHILIP M. HALPERN, U.S.D.J.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE United States Magistrate Judge.
Plaintiff Antoine T. Simmons, proceeding pro se, brings this action asserting claims pursuant to 42 U.S.C. § 1983, including a claim for false arrest in violation of the Fourth Amendment to the United States Constitution and a claim for deliberate indifference to his medical needs in violation of the Eighth Amendment to the United States Constitution. See ECF No. 91 (“Second Amended Complaint”). Currently before the Court are letter motions to dismiss for failure to prosecute filed by Defendants Yonkers Police Officers Api, Lebzetter, McManus, and Spaun (the “Yonkers Defendants”), ECF Nos. 209-210, and Frank Weber, D.D.S. (“Dr. Weber”), ECF No. 211 (the Yonkers Defendants and Dr. Weber are collectively referred to herein as “Defendants”). For the reasons that follow, I respectfully recommend that the motions to dismiss be GRANTED, and that the action be dismissed with prejudice as to the Yonkers Defendants and Dr. Weber.
The first three pages of ECF Nos. 209 and 210 are identical. Although the Yonkers Defendants mislabeled their motion as a motion for summary judgment, they cite and discuss the correct legal standard applicable to a motion to dismiss for failure to prosecute.
BACKGROUND
Plaintiff commenced this action by filing a complaint on October 30, 2017. ECF No. 1. On April 24, 2018, Plaintiff filed an amended complaint, ECF No. 14, and on April 4, 2019, he filed a second amended complaint, ECF No. 91, which is now the operative pleading in this matter.
On May 28, 2020, Your Honor granted Dr. Weber permission to file a motion to dismiss for failure to prosecute based on Plaintiff's failure to provide responses to Dr. Weber's discovery demands. ECF Nos. 147-148. Your Honor issued a Memorandum Opinion and Order on March 26, 2021 which, among other things, denied without prejudice to renewal Dr. Weber's motion to dismiss for failure to prosecute. ECF No. 184 (“Mem. Op.”). The March 26, 2021 decision noted that although Plaintiff had not responded to any of Dr. Weber's discovery demands, the case was “still in the early stages of litigation” and Plaintiff had not yet received “any notice [from the Court] that his case against Dr. Weber may be dismissed with prejudice for failing to prosecute this action against him and respond to his discovery demands.” Id. at 8-9. Such notice was expressly provided in the March 26, 2021 decision, which warned Plaintiff that “his continued failure to engage in discovery, respond to counsel's requests, and take steps to advance this action may result in the dismissal of his lawsuit with prejudice.” Id. at 9. While Dr. Weber's motion to dismiss was denied at that time, the denial was issued “without prejudice to renewal should Plaintiff continue to fail to respond to Dr. Weber's extant discovery demands and comply with this Court's Orders.” Id. As part of the March 26, 2021 decision, Dr. Weber's counsel was directed to re-send HIPAA authorization forms to Plaintiff within fourteen days, and Plaintiff was ordered to “respond to all of Dr. Weber's extant discovery demands within sixty days of the date of [the] Order.” Id.
In a letter dated April 3, 2021, Plaintiff informed the Court of a change of address, ECF No. 187, and Plaintiff's new address was entered on the docket as “7 Howard Place, Yonkers, NY.” The undersigned subsequently scheduled a court conference for May 7, 2021, see ECF No. 188 (scheduling order), and Plaintiff failed to appear; he also failed to appear for rescheduled conferences on May 17, 2021, see ECF No. 192 (rescheduling order), and May 25, 2021. Moreover, according to counsel for Defendants, Plaintiff failed to satisfy his obligations to provide discovery responses and signed HIPAA authorizations to Dr. Weber as directed by Your Honor in the March 26, 2021 decision, and failed to respond to discovery-related correspondence that was mailed to him by counsel for the Yonkers Police Officer Defendants. See ECF No. 193. Accordingly, by order dated May 25, 2021, the Court authorized Defendants to file motions to dismiss for failure to prosecute. Id. Defendants filed their motions to dismiss on June 8, 2021, see ECF Nos. 197-199, and Plaintiff did not file anything in opposition.
As reflected on the docket sheet, the court orders issued at ECF Nos. 188, 192, and 193 that were mailed to Plaintiff at “7 Howard Place, Yonkers, NY, ” were all returned as undeliverable. See Docket Sheet, entries dated 5/27/21 (return of ECF No. 192), 6/3/21 (return of ECF No. 188), and 6/8/21 (return of ECF No. 193). Unfortunately, it eventually became clear that the address provided by Plaintiff in his April 3, 2021 letter was not properly recorded on the docket by the Court. From a review of ECF No. 187, it is evident that the address provided by Plaintiff was “7 Altonwood Place, Yonkers, NY, ” id. (emphasis added), not “7 Howard Place”; thus, even though Plaintiff had taken the appropriate steps to notify the Court of his address on April 3, 2021, due to the Court's recording error, Plaintiff never received copies of any of the scheduling and rescheduling orders issued by the undersigned in April and May 2021.
Plaintiff reappeared in the case when, in a letter dated September 7, 2021, he informed the Court of another change of address, this time to the Westchester County Jail. ECF No. 201. In light of this correspondence, the undersigned scheduled a status conference for October 8, 2021, which was subsequently rescheduled to October 18, 2021. See ECF Nos. 202, 204. At the October 18 conference, Defendants withdrew their respective motions to dismiss for failure to prosecute based on Plaintiff's reappearance in the case, and the Court set various discovery deadlines. Docket Sheet, Minute Entry dated 10/18/2021. The Court scheduled the next status conference for December 16, 2021. ECF No. 205. During the December 16 conference, the parties reported on progress they had made in discovery, and Plaintiff informed the Court and Defendants that he was soon to be released from the Westchester County Jail. The Court specifically instructed Plaintiff on the record during the conference to notify the Court and counsel for Defendants of any updates to his address and telephone number, as he had done twice previously in 2021. See Docket Sheet, Minute Entry dated 12/16/2021. The Court scheduled the next status conference for February 15, 2022. Id.
Plaintiff failed to appear at the February 15 conference. As reported by counsel for the Yonkers Defendants at the conference, at some point prior to the conference, Plaintiff had left a message for counsel and provided a phone number, but attempts by counsel and by the Court to contact Plaintiff at this phone number on the morning of the conference were not successful. Defendants reported at the conference that there had been no further progress in discovery since the December 16, 2021 conference, due to the fact that Plaintiff had not provided his new address or working contact information to Defendants. The Court rescheduled the status conference to March 9, 2022. Because Plaintiff had not provided any updated contact information to the Court, the Court asked Defendants “to try to contact Plaintiff to let him know the next conference date and time and to ask Plaintiff to provide both them and the Court with an update as to his address and telephone number.” Docket Sheet, Minute Entry dated 2/15/2022.
Prior to the March 9 conference, Plaintiff left a message for counsel for the Yonkers Defendants, providing a new phone number but no new address. As reported by counsel for the Yonkers Defendants at the March 9, 2022 conference, on the morning of March 9, counsel for the Yonkers Defendants spoke to someone who he thought was Plaintiff and confirmed the scheduled 9:30 a.m. start time for the conference. Nonetheless, Plaintiff did not appear at the March 9 conference, and attempts by the Court to reach Plaintiff at the phone number he had provided to counsel for the Yonkers Defendants were not successful. See Docket Sheet, Minute Entry dated 3/9/2022. Accordingly, the Court issued a scheduling order on March 9, 2022, which noted Plaintiff's failures to appear on February 15 and March 9 and set March 16, 2022 as the date for the rescheduled status conference. See ECF No. 208. The March 9 scheduling order warned that “[i]n light of Plaintiff's failure to appear at the last two conferences, and his failure to provide the Court with up-to-date contact information, Plaintiff is hereby notified that his failure to appear at the March 16, 2022 conference will result in the Court granting Defendants permission to make a motion to dismiss the action for failure to prosecute.” Id. (bold in original). The scheduling order was mailed to Plaintiff at his address of record on the docket as of the date the order was issued.
On April 12, 2022, the scheduling order was returned to the Court as undeliverable. See Docket Sheet, entry dated 4/12/22.
Plaintiff again failed to appear at the March 16, 2022 conference. At the conference, counsel for the Yonkers Defendants explained that the phone number that Plaintiff had provided-and that counsel had called before the March 9 conference-turned out not to belong to Plaintiff, but rather to a “Mr. Braxton, ” who apparently allowed Plaintiff to use the phone number as needed. Although counsel for the Yonkers Defendants called the number in advance of the conference on March 16, 2022 and spoke with Mr. Braxton, Mr. Braxton refused to take a message for Plaintiff about the conference. Because Plaintiff had failed to appear at three consecutive conferences and failed to provide the Court with up-to-date contact information, the Court granted Defendants permission to file motions to dismiss the action for failure to prosecute, and set a schedule for the filing and service of those motions. See Docket Sheet, Minute Entry dated 3/16/2022. At the March 16 conference, the Court also directed Defendants' counsel to try to contact Plaintiff at the phone number listed in Plaintiff's April 3, 2021 change of address letter (ECF No. 187). The Court scheduled another conference for April 27, 2022. Id.
On March 30, 2022, Defendants filed, and served on Plaintiff at his last-known address, their renewed motions to dismiss for failure to prosecute. ECF Nos. 209-211. Counsel for the Yonkers Defendants noted in his motion papers that on March 28 and March 29, 2022, he tried to contact Plaintiff at the phone number listed in the April 3, 2021 letter, but he was unsuccessful: “phone keeps ringing - no voicemail.” ECF No. 209 at 1.
Plaintiff again failed to appear at the conference held on April 27, 2022. Defendants' counsel, who appeared at the conference, reported that Plaintiff had neither served them with papers in opposition to their motions to dismiss nor otherwise communicated with them. Similarly, Plaintiff has neither filed anything in response to the motions nor otherwise contacted the Court.
DISCUSSION
Rule 41(b) of the Federal Rules of Civil Procedure provides that a defendant may move to dismiss an action “[i]f the plaintiff fails to prosecute ....” Fed.R.Civ.P. 41(b). Thus, under Rule 41(b), a plaintiff is required to diligently prosecute his or her case. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). Although a dismissal pursuant to Rule 41(b) is a “harsh remedy that should be utilized only in extreme situations, ” Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009) (quotation marks omitted), “the authority to invoke it for failure to prosecute is vital to the efficient administration of judicial affairs and provides meaningful access for other prospective litigants to overcrowded courts, ” Lyell Theatre Corp., 682 F.2d at 42.
The Second Circuit has set forth five factors that it uses to review whether a court has properly dismissed a case for failure to prosecute:
whether (1) the plaintiff's failure to prosecute caused a delay of significant duration; (2) plaintiff was given notice that further delay would result in dismissal; (3) defendant was likely to be prejudiced by further delay; (4) the need to alleviate court calendar congestion was carefully balanced against plaintiff's right to an opportunity for a day in court; and (5) the trial court adequately assessed the efficacy of lesser sanctions.Lewis, 564 F.3d at 576 (quoting United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004)). In this case, each of the five factors warrants dismissal of Plaintiff's case against Defendants.
A. Delay of Significant Duration
Plaintiff has neglected to prosecute this case since at least December 2021. “There is no fixed period of time that must elapse before a plaintiff's failure to prosecute becomes substantial enough to warrant dismissal.” Caussade v. United States, 293 F.R.D. 625, 629 (S.D.N.Y. 2013). “Delays of several months have been found to warrant dismissal.” Id. (citing cases). “Courts have found dismissal appropriate for even shorter delays when a party has become completely inaccessible, as inaccessibility strongly suggests that [plaintiff] is not diligently pursuing [his or her] claim.” Id. at 630 (quotation marks omitted). Since he last appeared for a status conference on December 16, 2021, Plaintiff has failed to appear for multiple conferences; further, his failure to apprise either the Court or Defendants' counsel of his current contact information has made Plaintiff completely inaccessible, and has entirely prevented progress in discovery. Plaintiff updated his contact information twice during 2021, see ECF Nos. 187, 201; he knows how to do this, he knows he is required to do this, and yet he has failed to take this necessary step to allow the case to proceed, despite being instructed by the Court during the December 16 conference to notify both the Court and counsel for Defendants of any updates to his contact information upon his release from the Westchester County Jail. Accordingly, the duration of the delay weighs in favor of dismissal.
B. Notice that Further Delays Would Result in Dismissal
The Court notified Plaintiff in its scheduling order for the March 16, 2022 conference that his failure to appear “will result in the Court granting Defendants permission to make a motion to dismiss the action for failure to prosecute.” ECF No. 208 (emphasis in original).That scheduling order was mailed to Plaintiff's address of record on the docket as of that date. It is Plaintiff's responsibility to inform the Court of any changes in his address. See Brown v. Smith, No. 13-cv-4694 (AT), 2014 WL 5040908, at *2 (S.D.N.Y. Sept. 30, 2014) (collecting cases). Moreover, given that the Court has no current address for Plaintiff, “any attempt to further warn [P]laintiff[] of [his] responsibilities and the consequences of [his] continued failure to prosecute this action would be futile.” Lukensow v. Harley Cars of New York, 124 F.R.D. 64, 66 (S.D.N.Y. 1989). “The Court notes that any inability to receive actual notice of the proceedings was of [P]laintiff['s] own doing.” Id.
As noted above, Plaintiff also was made aware, in Your Honor's March 26, 2021 decision denying Dr. Weber's initial motion to dismiss for failure to prosecute, that his failure to participate in discovery could lead to the dismissal of his case. See Mem. Op. at 9. It is possible, however, that Plaintiff never received a copy of the March 26, 2021 decision. While the notice of electronic filing associated with the March 26, 2021 decision indicates that it was to be mailed to Plaintiff at his then-address of record at Collins Correctional Facility (where he was incarcerated at that time), there is no corresponding notation on the docket that the mailing actually was completed. Further, Plaintiff's April 3, 2021 change of address letter to the Court inquired as to “what's going on with my suit, ” ECF No. 187, suggesting that Plaintiff had not received a copy of the March 26, 2021 decision as of that date. Given that Plaintiff was released from prison on April 8, 2021, see id., it is impossible to know whether he received a copy of the March 26, 2021 decision in time, even if it was actually mailed to him.
In accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) and Local Civil Rule 7.2 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, copies of this case and other cases that are unpublished or only available by electronic database are being simultaneously mailed to the pro se Plaintiff along with this Report and Recommendation.
C. Prejudice to Defendants Resulting from Further Delays
“With regard to possible prejudice to defendants by virtue of further delay, a failure to dismiss would likely leave the case pending for an indefinite time into the future, or at least until [P]laintiff changed [his] mind or the court lost patience. Accordingly, we may infer the likelihood of some prejudice if the motion were not granted.” Wilson v. Oxford Health Plans (N.Y.), Inc., No. 01-cv-3417 (MHD), 2002 WL 1770813, at *3 (S.D.N.Y. July 31, 2002); see also Peart v. City of New York, 992 F.2d 458, 462 (2d Cir. 1993) (“prejudice resulting from unreasonable delay may be presumed as a matter of law”). Moreover, “[w]here a plaintiff has become inaccessible for months at a time, courts presume prejudice.” Caussade, 293 F.R.D. at 630. Defendants have also been prejudiced by Plaintiff's failure to prosecute this case due to “the passage of time, ” given that the case is based on events which occurred in October 2014 and May 2015. See Second Amended Complaint; Edwards v. Horn, No. 10-cv-6194 (RJS) (JLC), 2012 WL 1292672, at *2 (S.D.N.Y. Apr. 13, 2012) (finding that defendant had been prejudiced by plaintiff's “failure to prosecute this action by the passage of time, given that the incident giving rise to the claim . . . occurred . . . more than four years ago . . . and as a matter of law prejudice is presumed.”), adopted by, 2012 WL 1592196 (S.D.N.Y. May 4, 2012). For all of these reasons, the “prejudice to defendants” factor weighs in favor of dismissal.
D. Balance Between Calendar Congestion and the Opportunity to Be Heard
Given the age of this case and the length of time that it has remained inactive due to Plaintiff's failure to appear at conferences or progress with discovery, the Court's interest in reducing docket congestion and freeing up limited judicial resources to allow other cases to proceed outweighs the need to give Plaintiff more time to be heard in the matter. See Lukensow, 124 F.R.D. at 67 (“[T]here can be no assertion by plaintiffs that the dismissal of this action denies them their right to due process and a fair opportunity to be heard. The fact is that this dismissal results from plaintiffs' own conduct. The result could have been avoided by pressing their claim in the adversary proceeding.”); see also Feurtado v. City of New York, 225 F.R.D. 474, 480 (S.D.N.Y. 2004) (“[F]airness to other litigants, whether in the same case or merely in the same court as competitors for scarce judicial resources may require a district court to dismiss a case pursuant to Rule 41(b).”) (quotation marks omitted).
E. Consideration of Lesser Sanctions
In light of Plaintiff's continued failure to proceed with this case, and his failure to update his contact information or communicate with the parties or the Court, the sanction of dismissal with prejudice is appropriate. See, e.g., Edwards, 2012 WL 1292672, at *2 (“[Plaintiff's] failure to prosecute and his most recent failures to appear at court-ordered conferences demonstrate that any lesser sanction would be an exercise in futility[.]”) (quotation marks omitted); Smith v. Human Res. Admin. of New York City, No. 91-cv-2295 (MGC), 2000 WL 307367, at *3 (S.D.N.Y. Mar. 24, 2000) (“[L]esser sanctions are not appropriate in this case. Court orders and direction have not prompted plaintiff to move her case forward ....Moreover, plaintiff is proceeding in forma pauperis, rendering monetary sanctions inappropriate.”); see also, e.g., Lawson v. Stermer, No. 04-cv-6630L, 2006 WL 625847, at *1 (W.D.N.Y. Mar. 9, 2006) (“Plaintiff himself has effectively ceased to seek his day in court, and since the Court has been unable to locate plaintiff, no lesser sanction would be effective, since plaintiff would be unaware that any sanction had been imposed.”); Lukensow, 124 F.R.D. at 67 (“In the case at bar, no sanction other than dismissal will suffice. Plaintiffs cannot be contacted by this Court and, therefore, any lesser sanction would be both unenforceable and ineffective in this abandoned action.”). Because Plaintiff has not provided any method for the Court to contact him regarding this matter, he cannot be given notice of any sanction less than dismissal.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the motions to dismiss for failure to prosecute filed by the Yonkers Defendants and Dr. Weber (ECF Nos. 209-211) be GRANTED, and that Plaintiff's action be dismissed with prejudice.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made by mail). 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 responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Philip M. Halpern, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Halpern, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).
A copy of this Report and Recommendation has been mailed to the pro se Plaintiff by Chambers at Plaintiff's address of record on the docket as of the date of the Report and Recommendation.