Denslow v. NYPD Officers et al
ORDER granting 48 Motion to Dismiss for Failure to State a Claim; granting 54 Motion to Dismiss for Failure to State a Claim. For the reasons set forth in the within Memorandum and Order, plaintiff's Amended Complaint is dismissed with prejudice. Counsel for defendants are respectfully requested to serve a copy of this Memorandum and Order on pro se plaintiff at his last-known address prior to incarceration and file proof of service on or before 12/3/12. The Clerk of Court is respectfully requested to enter judgment for defendants and close this case.Ordered by Judge Kiyo A. Matsumoto on 11/29/2012. (Kelley, Jamuna)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PRINT OR
MEMORANDUM & ORDER
-againstNANCY COLL, DETECTIVE DANIEL
PEREZ, SGT. TODD POSTEL, JOHN DOE,
RODNEY SMITH, CAPT. BELL and
KIYO A. MATSUMOTO, UNITED STATES DISTRICT JUDGE:
On June 30, 2011, pro se plaintiff Johnny Denslow
(“plaintiff”) filed an Amended Complaint, 1 alleging a violation
of 42 U.S.C. § 1983, false arrest, violation of due process
rights under the Fourteenth Amendment, and excessive force in
violation of the Eighth Amendment.
(ECF No. 10.)
attempts at service, all of the above-named defendants except for
“John Doe” were served by January 10, 2012.
(See ECF Nos. 13-14,
18, 38, 39, 44.)
On December 5, 2011, defendants Nancy Coll and Rodney
Smith (the “Parole Officer Defendants”) served plaintiff with
The court had previously dismissed plaintiff’s original complaint sua sponte
for failure to state a claim and/or for seeking monetary damages from immune
defendants pursuant to 28 U.S.C. § 1915A(b). (ECF No. 7, Memorandum and Order
dated 4/8/11.) After failing to amend his complaint within the time set forth
in the April 18 Order, on April 28, 2011, the court again directed plaintiff
to amend his complaint or face dismissal. (See docket entry dated 4/28/11.)
Plaintiff sought to extend the time to amend on May 31, 2011, and after the
court again granted him a 30-day extension on that same day, eventually
amended his complaint on June 30, 2011. (See docket entry dated 5/31/11; ECF
No. 10, Amended Complaint (“Am. Compl.”).)
their motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6).
(ECF No. 52.)
December 22, 2011, defendants Omar Bell, Alicia Dawson, Daniel
Perez, and Todd Postal (the “City Defendants”) served plaintiff
with their motion to dismiss for lack of subject matter
jurisdiction and failure to state a claim.
(ECF No. 54.)
February 1, 2012, plaintiff wrote to the court requesting an
extension of time to serve his opposition due to his inability to
access legal materials while incarcerated, but that he expected
to be released from prison in March 2012.
(ECF No. 45.)
order dated February 3, 2012, the court gave plaintiff until
April 16, 2012 to respond to the motions to dismiss.
entry dated 2/3/212.)
As of May 2, 2012, however, plaintiff had not served
any response to defendants’ respective motions to dismiss.
docket entry dated 5/2/12).
Thus, given that the court had
already granted plaintiff an extension of time to file his
response to the motions, the court ordered plaintiff to respond
to the motions to dismiss on or before June 1, 2012.
May 2, 2012 order also notified plaintiff that if he did not
respond by June 1, 2012, the court would deem the motions
unopposed, potentially resulting in dismissal of plaintiff’s case
for the reasons set forth in the motions, failure and/or for
failure to prosecute and failure to comply with court orders
pursuant to Federal Rule of Civil Procedure 41(b).
(Id. (“If no
opposition is served by 6/1/2012, defendants’ motions to dismiss
will be deemed unopposed and this case may be dismissed for the
reasons set forth in defendants’ motions and/or for failure to
prosecute and failure to comply with the court’s orders, pursuant
to Federal Rule of Civil Procedure 41(b).”))
were further ordered to exercise due diligence in obtaining
plaintiff’s current post-release mailing address.
entry dated 5/3/12.)
Defendants served plaintiff with a copy of
the court’s May 2, 2012 order on May 3, 2012 at his last-known
(ECF No. 60.)
On May 3, 2012, defendants informed the court that they
were unable to obtain a post-release address for plaintiff,
despite (i) contacting the Department of Corrections and
Community Supervision to obtain any forwarding address provided
by plaintiff upon his release, which there was none; (ii)
contacting the New York State Division of Parole, which has no
information for plaintiff because he is not on parole; and (iii)
searching online databases and Lexis.com, which also did not
(ECF Nos. 58-59.)
Additionally, on June 11, 2012
and August 27, 2012, defendants again informed the court by
letter that plaintiff still had not responded and asked that
their motions be deemed unopposed and, therefore, fully
(ECF Nos. 67-68.)
On September 6, 2012, having observed that seven months
had passed since plaintiff had last been active in this case, the
court issued an Order to Show Cause ordering plaintiff by
September 26, 2012 to show cause as to why defendants’ motions
should not be deemed unopposed and why this action should not be
dismissed for failure to prosecute and to comply with a court
order pursuant to Federal Rule of Civil Procedure 41.
entry dated 9/6/12.)
Defendants were ordered to serve the Order
to Show Cause on plaintiff at his last known address prior to
incarceration, which they did by September 7, 2012.
As of the date of this opinion, plaintiff still has not
filed a response to the show-cause order or the two pending
motions to dismiss.
In light of the foregoing, the wide latitude the court
has previously afforded plaintiff, and the defendants’ diligent
but fruitless attempts to locate plaintiff’s current address,
defendants’ motions to dismiss are considered unopposed and fully
It is further ordered that defendants’ motions to
dismiss are granted for the reasons set forth therein,
specifically, for lack of subject matter jurisdiction and for
failure to state a claim.
Plaintiff’s claims are also dismissed
for failure to prosecute and failure to comply with a court
order, pursuant to Federal Rule of Civil Procedure 41(b).
In addition to dismissing plaintiff’s claims for lack
of subject matter jurisdiction and failure to state a claim, the
court dismisses plaintiff’s complaint for failure to comply with
court orders and to prosecute this action, pursuant to Federal
Rule of Civil Procedure 41(b).
A district court has the inherent
power to manage its own affairs “so as to achieve the orderly and
expeditious disposition of cases.”
Lewis v. Rawson, 564 F.3d
569, 575 (2d Cir. 2009) (quoting Link v. Wabash R.R. Co., 370
U.S. 626, 630–31, 82 S. Ct. 1386, 8 L.Ed.2d 734 (1962)).
Consistent with that inherent power, Federal Rule of Civil
Procedure 41(b) provides, in relevant part, “[i]f the plaintiff
fails to prosecute or to comply with these rules or a court
order, a defendant may move to dismiss the action or any claim
“Rule 41(b) also gives the district court authority
to dismiss a plaintiff’s case sua sponte for failure to
LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206,
209 (2d Cir. 2001) (citing Link, 370 U.S. at 630–31).
court specifies otherwise, Rule 41(b) provides that dismissal
“operates as an adjudication on the merits.”
Link, 370 U.S. at
Courts contemplating dismissal of a plaintiff’s claim for
failure to prosecute and/or to comply with a court order pursuant
to Rule 41(b) consider:
‘(1) duration of plaintiff’s failures or noncompliance; (2) whether plaintiff had notice
that such conduct would result in dismissal;
(3) whether prejudice to defendant is likely
to result; (4) whether court balanced its
interest in managing its docket against
plaintiff’s interest in receiving opportunity
to be heard; and (5) whether court adequately
considered efficacy of sanction less
draconian than dismissal.’
Lewis, 564 F.3d at 576 (quoting United States ex rel. Drake v.
Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004)).
factor is dispositive.
In weighing the five Drake factors,
the court must consider the record of the entire case as a whole.
A court may find the standard for dismissal satisfied where
it finds a “pattern of dilatory tactics” or “an action lying
dormant with no significant activity to move it.”
Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982).
Nonetheless, special leniency should be afforded to pro se
litigants such that the circumstances have to be “sufficiently
extreme” to warrant dismissal.
Le Sane, 239 F.3d at 209.
All of the five Drake factors favor dismissal of the
With respect to the first factor, a review of the
docket sheet shows that plaintiff has not taken any action in
this case or communicated with the court for seven months,
despite multiple orders from the court and extensions of time to
This is enough time to warrant dismissal.
Antonio v. Beckford, No. 05 Civ. 2225, 2006 U.S. Dist. LEXIS
71859, at *8–9 (S.D.N.Y. Sept. 29, 2006) (citing decisions
dismissing cases for delays of three months or more).
plaintiff was notified repeatedly that his continued failure file
his responses would incur the risk of dismissal under Fed. R.
Civ. P. 41(b), or for the reasons set forth in defendants’
motions to dismiss.
(See docket entries dated 5/2/12 and
The court’s Order to Show Cause also plainly provided
plaintiff with notice that he was to show cause as to why his
action should not be dismissed.
(Docket entry dated 9/6/12.)
Defendants served copies of their motions and all the court’s
orders directing plaintiff to respond at plaintiff’s last known
addresses, putting plaintiff on notice that they were seeking to
dismiss his case and that he was still required to respond.
Additionally, regarding the third Drake factor –
whether prejudice to defendants is likely to result – applicable
case law establishes a presumption that a plaintiff’s
unreasonable delay will normally prejudice the defendants.
e.g., Shannon v. Gen. Elec. Co., 186 F.3d 186, 195 (2d Cir. 1999)
(citing Lyell Theatre Corp., 682 F.2d at 43).
respect to whether the court balanced its interest in managing
its docket against plaintiff’s interest in receiving an
opportunity to be heard, this dormant case has remained on the
court’s docket for seven months and there is no indication that
plaintiff will move it forward in the future.
Finally, no lesser
sanction than dismissal is likely to be effective in light of
plaintiff’s failure to respond to defendants’ motions to dismiss
or to the court’s orders directing plaintiff to take action on
pain of possible dismissal.
Moreover, the court has afforded the
pro se plaintiff the “special leniency” it must, and finds that
these circumstances are “sufficiently extreme” to warrant
See LeSane, 239 F.3d at 209.
plaintiff’s continued failure to prosecute the case and to
respond to court orders over the past seven months, this case is
dismissed with prejudice.
For the reasons set forth above, plaintiff’s Amended
Complaint is dismissed with prejudice.
Counsel for defendants
are respectfully requested to serve a copy of this Memorandum and
Order on pro se plaintiff at his last-known address prior to
incarceration and file proof of service on or before 12/3/12. The
Clerk of Court is respectfully requested to enter judgment for
defendants and close this case.
Dated: November 29, 2012
Brooklyn, New York
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
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