Opinion
94 Civ. 6384 (TPG)
February 2, 2000
OPINION
Plaintiff Ronald Williams alleges that three correction officers used excessive force on him while he was at the Rikers Island Detention Center. He is proceeding pro se. Defendants have moved for a dismissal under Fed.R.Civ.P. 41(b) for lack of prosecution.
The motion is denied.
Facts
The date of the alleged assault on plaintiff was May 29, 1994. Plaintiff filed a complaint pro se on July 25, 1994. He named as defendants "C.O. Harrell, C.O. Perez, C.O. Carrington."
On September 19, 1997 the court notified plaintiff that he must serve defendants or the case would be dismissed. On October 30 the court extended plaintiff's time for service until January 2, 1998, and directed the Pro Se Clerk's Office to send plaintiff the proper forms. There were attempts to make service but they failed. This was recorded on the docket on December 11, 1997.
The problem appears to be that plaintiff had failed to identify C.O. Harrell, C.O. Perez and C.O. Carrington sufficiently for service to be effected. On March 11, 1998 the court directed Corporation Counsel to assist in ascertaining the identities of the officers involved. The court based its request on the Second Circuit case of Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997), which encouraged making such requests to assist pro se plaintiffs rather than dismissing their cases.
In a letter dated November 25, 1998 Corporation Counsel stated that it did not receive a copy of the March 11 order. However, two of the officers have been served. Plaintiff effected service on C.O. Harrell and C.O. Carrington in late October 1998.
Corporation Counsel has now moved to dismiss for lack of prosecution both as to C.O. Perez and the two defendants who have been served.
Discussion
A dismissal under Rule 41(b) would be considered a dismissal on the merits. The standard is discretionary, but the Second Circuit discourages using 41(b) against pro se plaintiffs. The Second Circuit in fact defers to a district court's dismissal in such cases "only when the circumstances are sufficiently extreme." Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998).
In the present case, since the initial long period of inactivity, plaintiff appears to have made a good faith effort to effect service and pursue this case. He did serve two defendants, apparently without the assistance of Corporation Counsel which had been requested by the court.
As to C.O. Perez, it appears that Corporation Counsel has not attempted to help in the identification despite having notice of the court's March 1998 order no later than November of that year.
The present record does not justify a dismissal as to any defendant under Rule 41(b).
The motion is denied.
SO ORDERED.