Griffith v. Police Detective John Doe 1 et al
Filing
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MEMORANDUM DECISION AND ORDER, granting Deft's 45 Motion to Dismiss and this case is dismissed with prejudice. The Court certifies pursuant to 28 USC sec. 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. (Ordered by Judge Brian M. Cogan on 3/2/2012) c/m by chambers. Fwd. for Judgment. (Galeano, Sonia)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JERIC GRIFFITH,
MEMORANDUM
DECISION AND ORDER
Plaintiff,
10-CV-6066 (BMC)(LB)
- againstDETECTIVE CHARLES STEWART,
SERGEANT ROBERT CABAN, CITY
OF NEW YORK, and THE NYPD,
Defendants.
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COGAN, District Judge,
This case is before me on defendants' motion to dismiss for failure to prosecute. Plaintiff
Jeric Griffith, appearing prose, brought this action on December 28, 2010. Since the inception
of this case, Griffith has repeatedly failed to attend Court conferences and has consistently
ignored Court-ordered discovery schedules. On seven separate occasions, this Court warned
Griffith that failure to cooperate with Court Orders would result in dismissal of this action:
•
On April28, 2011, after Griffith failed to attend the first scheduled conference in
this case, Magistrate Judge Bloom issued an Order directing him to Show Cause
why he had failed to attend the conference and warning that "if he fails to timely
appear at [the next scheduled conference] the Court will dismiss this action."
•
After Griffith failed to attend the next scheduled conference, and provided no
explanation for his absence, Judge Bloom authored a Report and
Recommendation ("R&R") on May 19, 2011, recommending that his case be
dismissed under Fed, R, Civ. P, 37(b)(2)(A) for Griffith's failure to comply with
Court Orders.
•
On June 1, 2011, after Griffith objected to her R&R, Judge Bloom withdrew her
recommendation and warned Griffith that if he failed to attend the next scheduled
conference or failed to comply with any future Court Orders, she would "not
hesitate" to dismiss the case.
•
After Griffith failed to comply with discovery Orders, defendants moved to
compel discovery or, in the alternative, dismiss the action for failure to prosecute
under Fed. R. Civ. P. 4l(b). On October 17, 2011, Judge Bloom denied the
motion to dismiss and granted the motion to compel, warning Griffith that "[t]his
is final and no further extension shall be granted. If plaintiff fails to comply with
this Court order, I shall recommend that his case should be dismissed .... "
•
After Griffith failed to comply with Judge Bloom's October 17th Order, she
authored an R&R recommending that Griffith's complaint be dismissed as a
sanction pursuant to Rule 37(b)(2)(A)(v).
•
On December 5, 2011, I held that dismissal was not yet appropriate as a discovery
sanction because it "remain[ed] possible that a lesser sanction may secure
Griffith's cooperation." I therefore imposed a $350 sanction on Griffith and
warned that failure to pay the sanction would result in dismissal with prejudice.
•
After Griffith paid his sanction, Judge Bloom issued a Scheduling Order on
February 7, 2012, in which she Ordered Griffith to attend the next scheduled
conference and stated that Griffith was "again warned that he must comply with
all Court orders and his discovery obligations or his case will be dismissed."
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Griffith failed to attend the next scheduled conference before Judge Bloom and failed to
explain his absence. On February 16,2012, defendants moved to have this action dismissed with
prejudice pursuant to Rule 4l(b). To this date, Griffith has not explained his absence from the
conference or submitted an opposition to defendants' motion to dismiss.
When considering a motion to dismiss for failure to prosecute under Rule 41(b), the
Court must weigh five factors: "(l) the duration of the plaintiff's failures, (2) whether plaintiff
had received notice that further delays would result in dismissal, (3) whether the defendant is
likely to be prejudiced by further delay, (4) whether the district judge has taken care to strike the
balance between alleviating court calendar congestion and protecting a party's right to due
process and a fair chance to be heard and (5) whether the judge has adequately assessed the
efficacy oflesser sanctions." LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206,209 (2d Cir.
2001).
Although the Court is mindful that dismissal under Rule 41 (b) is "a harsh remedy and is
appropriate only in extreme situations," Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996), my
consideration of the five relevant factors leads unambiguously to the conclusion that dismissal
with prejudice is warranted here. Griffith's delinquent behavior has continued unabated for
almost a year, and he has received no fewer than seven warnings that his case would be
dismissed if he continued to flout the Court's Orders. In fact, Judge Bloom has authored two
prior R&Rs recommending dismissal of this case. Furthermore, this Court is confident that
lesser sanctions will not serve to correct Griffith's incorrigible behavior. Griffith was recently
forced to pay a $350 sanction- a significant sum for a plaintiff who had qualified to proceed in
forma pauperis - and yet he failed to attend the very next status conference scheduled in his
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case. Defendants should not be forced to continue showing up to Court conferences and abiding
by this Court's discovery Orders when there is clearly no one on the other end of the line.
CONCLUSION
Defendants' motion is granted and this case is dismissed with prejudice. The Court
certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken
in good faith and therefore in forma pauperis status is denied for purpose of an appeal.
Coppedge v. United States, 369 U.S. 438,444-45, 82 S. Ct. 917 (1962).
SO ORDERED.
U.S.D.J.
Dated: Brooklyn, New York
March 2, 2012
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