Opinion
No. 03 Civ. 2997 (KMW) (DF).
March 16, 2004
REPORT AND RECOMMENDATION
Plaintiff Nathaniel Sims ("Sims"), proceeding pro se, commenced this action under 42 U.S.C. § 1983 in April 2003, while he was incarcerated at the Westchester County Jail. Since then, Sims has apparently been released from prison, but the Court is unaware of his current address or telephone number. As Sims has failed to keep the Court apprised of his whereabouts, and as has not responded to pending motions, I recommend that his action be dismissed for failure to prosecute. For the reasons set forth below, however, I further recommend that such a dismissal be without prejudice.
DISCUSSION
A. Factual Background
Sims commenced this action by filing a Complaint on April 29, 2003. (Dkt. 2.) On June 2, 2003, after the matter was referred to me for general pretrial supervision, I sent Sims a letter, advising him that, under Rule 4(m) of the Federal Rules of Civil Procedure, he was required to arrange for service of the Summons and Complaint by August 29, 2003. (Dkt. 7.) That letter was returned to the Court as undeliverable, apparently because Sims was released from prison prior to the attempted delivery of the Court's letter. On July 31, 2003, Sims notified the Court of his change of address. Accordingly, in the interest of justice, the Court extended Sims's deadline for serving the Summons and Complaint by sixty (60) days, to October 28, 2003. (Dkt. 9.)
Sims then arranged for service of the Summons and Complaint on at least certain of the defendants (Dkt. 10-15), and those defendants responded by moving to dismiss the Complaint ( see motions dated September 30, 2003 (Dkt. 17) and December 17, 2003 (Dkt. 22)). To date, Sims has not responded to either of the pending motions.
Further, since November 19, 2003, materials mailed by the Court to Sims, at the address provided by Sims in July 2003, have again been returned as undeliverable. After a copy of a November 18, 2003 scheduling order (Dkt. 21) that the Court mailed to Sims was returned with the stamp: "Attempted, Not Known," the Court wrote to Sims on February 10, 2004, for the express purpose of notifying him that he was responsible for keeping the Court informed of any changes to his address. (Dkt. 24.) In that letter, I stated:
. . . if you wish to continue to pursue this case, you should contact the Court's Pro Se Office to provide your new address, as well as a telephone number where you may be reached. If you fail to do so by March 12, 2004, I will recommend to Judge Wood that your case be dismissed for failure to prosecute.
( Id. (emphasis in original).) Unfortunately, that letter, too, was returned to the Court as undeliverable.
To date, this Court has received no further communications from Sims.
B. Applicable Legal Standards
A plaintiff has a general obligation to prosecute his case diligently, see Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982), 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. "A plaintiff's 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).
Further, it is the plaintiff's responsibility to keep the Court informed of his current address, and failure to do so may justify dismissal for failure to prosecute. See, e.g., Ortiz v. United States, No. 01 Civ. 4665 (AKH), 2002 WL 1492115, at *1 (S.D.N.Y. July 11, 2002) (dismissing complaint for failure to prosecute where plaintiff had shown no interest in pursuing claim since release from custody and had failed to keep court or defendant informed of current address); Holmes v. State of New York Office of Court Admin., No. 00 Civ. 7871 (LAP AJP), 2001 WL 5035, at *1 n. 1 (S.D.N.Y. Jan. 2, 2001) ("If the Court no longer has a valid address for plaintiff Holmes, it was his responsibility to keep the Court informed of any change of his address."); Handlin v. Garvey, No. 91 Civ. 6777 (AGS), 1996 WL 673823, at *5 (S.D.N.Y. Nov. 20, 1996) (dismissing complaint against defendant for failure to prosecute, where plaintiffs did not respond to defendant's motion to dismiss due "either to their disinterest in pursuing their claims or their failure to apprise defendants and the Court of their current addresses, an obligation that rests with all pro se plaintiffs.").
Moreover, the Court may act sua sponte to dismiss a case for failure to prosecute, where it is evident to the Court, without a motion, that dismissal is warranted. See Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962). 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." Id. at 630-31.
Although dismissal can operate as an adjudication on the merits, a court may dismiss without prejudice by so specifying in the order. See Lyell Theatre Corp., 682 F.2d at 43. A dismissal without prejudice may be appropriate where the plaintiff is proceeding pro se, especially where the Court lacks information as to why the plaintiff has not proceeded or has not furnished the Court with a current address. King v. Barnhart, No. 98 Civ. 6827 (LMM), 2003 WL 22024993 (S.D.N.Y. Aug. 27, 2003); see also, e.g., Stoenescu v. Jablonsky, No. 93 Civ. 3500 (JES) (S.D.N.Y. July 11, 1995) (dismissing pro se complaint without prejudice, and affording plaintiff one final opportunity to appear); Klyumel v. United Nations, No. 92 Civ. 4231 (PKL) (S.D.N.Y. Dec. 4, 1992) (dismissing complaint without prejudice where pro se plaintiff failed to submit a new address to the Court).
C. Sims's Complaint Should Be Dismissed Without Prejudice
Here, although dismissal under Rule 41(b) is warranted because of Sims's failure to respond to defendants' motions or to inform the Court of his current address, a dismissal with prejudice may be unduly harsh. The Court notes that Sims is proceeding pro se and that he has made at least some efforts to prosecute his case. Although there was a brief delay in notification, Sims did, on one prior occasion, inform the Court of a change in his address, and he also took steps to effectuate service of his Complaint, in accordance with the Court's directive. Further, although the Court recently issued Sims an explicit warning that the failure to continue to keep the Court informed of his address could lead to dismissal of this action, Sims apparently never received that warning, because it was returned to the Court as undeliverable.
At this point, the Court has no information as to why Sims has not proceeded with his case or made further efforts to keep the Court informed of his whereabouts. As Sims is proceeding pro se, and as the Court has not been able to reach him to inquire as to the reasons for his current failure to prosecute the case, I recommend that the case be dismissed without prejudice.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Complaint in this action be dismissed without prejudice, pursuant to Fed.R.Civ.P. 41(b), for failure to prosecute.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, Room 1610, New York, New York 10007-1312. Any requests for an extension of time for filing objections must be directed to Judge Wood. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) 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).