Szabo v. City of New York et al

Filing 186

MEMORANDUM & ORDER: This action is dismissed with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and there fore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is respectfully directed to enter judgment and close this case. ORDER ATTACHED. Ordered by Judge Eric R. Komitee on 10/19/2022. (copy mailed). (AG)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
JESSICA SZABO,
MEMORANDUM & ORDER
16-CV-3683(EK)(LB)

Plaintiff,
-againstCITY OF NEW YORK, et al.,
Defendants.
------------------------------------x
ERIC KOMITEE, United States District Judge:

Plaintiff Jessica Szabo, also known as Jessica Graham,1
commenced this action on June 28, 2016.

Proceeding pro se, she

alleged that various New York City and State officials violated
her civil rights over a multi-day period in April 2016,
primarily by assaulting her while she was in custody.
6-7, ECF No. 1.2

Compl. at

On September 26, 2022, defendants James Wilson,

Dia Cascone, Tarell Winfield, and Paul Bartelotti (the “City
defendants”) moved to dismiss the case for failure to prosecute
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.3
Defs.’ Mem. in Supp. of Mot. to Dismiss (“Defs.’ Br.”), ECF No.

1 The Court will refer to Plaintiff as Jessica Graham, as that is how
she has referred to herself in recent filings. She is also proceeding under
that name in another case before the undersigned: Graham v. McCarthy, 14-CV5815 (EK)(LB).
2 Page numbers in citations to record documents other than deposition
transcripts and briefs refer to ECF pagination.
3

The City of New York was terminated as a defendant on July 20, 2016.
See Order dated July 20, 2016, ECF No. 5 at 5.

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179.

By that date, more than six years into the case, Graham

had failed to respond to the Court’s order to submit a changeof-address notice, missed three status conferences, and failed
to submit certain pretrial filings.

These failings occurred in

the lead-up to a trial scheduled for October 3, 2022.

During a

hearing on September 28, 2022, I granted the motion to dismiss.
This memorandum summarizes the reasons for that dismissal.
Background
During a status conference on April 26, 2022, at which
Graham and counsel for all defendants were present, I set trial
for October 3, 2022.

See Min. Entry for Status Conf. on Apr.

26, 2022, ECF No. 158.

On August 22, 2022, in anticipation of

trial, I issued an order scheduling a telephone status
conference for September 12, 2022.
2022.

See Order dated Aug. 22,

In that order, I directed the appropriate official at the

Edna Mahan Correctional Facility (“EMCF”) in Clinton, New Jersey
– Graham’s last known address4 – to make her available to
participate by telephone at the conference.

See id.

On August

23, 2022, the Court learned that Graham was no longer at EMCF
and was instead at the Essex County Correctional Facility in
Newark, New Jersey.5

4

Then, on September 2, 2022, the Essex

See Pl.’s Letter dated Nov. 24, 2021, ECF. No. 151 at 1.

5 First, an official at EMCF informed the Court that Graham had been
transferred to the Union County Jail in Elizabeth, New Jersey. Then, upon

2

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County Department of Corrections advised the Court that Graham
had been released from custody on August 19, 2022.
dated Sept. 2, 2022.

See Order

Accordingly, the Court directed Graham to

submit a change-of-address notice “as soon as possible.”
id.

See

Despite this directive and a second order issued ten days

later, Graham failed to notify the Court of her new address.6
See Min. Entry for Status Conf. on Sept. 12, 2022, ECF No. 166.
Graham did not appear at the September 12, 2022 status
conference or two subsequent status conferences.

See id.

(noting Graham’s absence); Order by Magistrate Judge Cho dated
Sept. 22, 2022 (same); Min. Entry for Status Conf. on Sept. 22,
2022, ECF No. 175 (same).

These failures to appear came despite

attempts by the Court and the City defendants’ counsel to
contact Graham at her last known cell phone number, email
address, and residential address prior to incarceration to
remind her of the scheduled proceedings.

See Min. Entry for

Status Conf. on Sept. 22, 2022, ECF No. 175; Defs.’ Br. at 4-5.

contacting the Union County Jail, the Court learned that Graham had
subsequently been transferred to the Essex County Correctional Facility.
6

On September 28, 2022, the Clerk of the Court received a letter from
Graham dated September 22, 2022 notifying the Court that she was being housed
at Hudson County Correctional Facility in Kearny, New Jersey. See Pl.’s
Letter dated September 22, 2022, ECF No. 183. The letter did not explain –
and the Court is still not aware – how Graham came to be held there or what
occurred between her release from EMCF on August 19, 2022, and her September
22, 2022 letter. In any event, the letter arrived after I had ordered the
case dismissed during the September 28, 2022 status conference.
3

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Further, Graham did not (1) submit motions in limine
or (2) file her proposed voir dire questions, requests to
charge, or proposed verdict sheet, as required by Rules V.A.1(l)
and V.B.3 of this Court’s Individual Rules and Practices.

These

filings were due on September 6 and September 27, 2022,
respectively.

See Order dated Sept. 2, 2022; Min. Entry for

Status Conf. on Sept. 22, 2022, ECF No. 175.
Graham’s recent unexplained absence from this case was
not the first.

On October 28, 2021, Brachah Goykadosh, former

counsel for the City defendants, notified the Court that despite
multiple attempts to contact Graham concerning a proposed joint
pretrial order, Goykadosh had been unable to reach her.
Letter dated Oct. 28, 2021, ECF No. 148 at 2.

Defs.’

Goykadosh further

stated that she had “not had any contact with Ms. [Graham] for
over a year.”

Id.

Notably, this earlier period of silence from

Graham occurred while the City defendants were attempting to
enforce a putative settlement agreement to which the parties had
agreed in principle in May 2020 before Graham backed away from
it in July of that year.7

7

See Order dated May 28, 2020 (noting agreement in principle); Order
dated July 17, 2020 (noting Graham’s apparent reversal); Defs.’ Mot. to
Enforce Settlement, ECF No. 136. During this time, Graham filed no
opposition to the City defendants’ motion to enforce the settlement even
after the Court sua sponte granted her an extension when she missed the first
deadline, which itself had been extended at Graham’s request. See Orders
dated Dec. 9, 2020; Jan. 28, 2021; Mar. 5, 2021. Despite Graham’s failure to
engage on this issue, the Court declined to enforce the alleged agreement
against her. See Order dated Sept. 30, 2021, ECF No. 147.
4

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In light of these developments and in reply to
Goykadosh’s letter, I issued an order advising that “if [Graham]
continues to be unresponsive, Defendants may file their own
version of the pretrial order” on the scheduled date.
dated Nov. 2, 2021.

Order

In that order, I also warned Graham that

“if she does not participate in the preparation of the joint
pretrial order and appear at the pretrial conference [scheduled
for November 22, 2021], the Court will consider dismissing the
case for failure to prosecute.”

Id.

On November 4, 2021, Goykadosh informed the Court that
Graham was incarcerated at EMCF.
4, 2021, ECF No. 149 at 1.

See Defs.’ Letter dated Nov.

Upon receipt of this information, I

issued an order relieving Graham of the obligation to submit a
proposed pretrial order.

See Order dated Nov. 17, 2021.

From

that point until June 2, 2022, Graham was in periodic
communication with the Court, see, e.g., Pl.’s Letter dated Jan.
28, 2022, ECF No. 157, and attended status conferences.

See

Min. Entry for Status Conf. on Dec. 2, 2021, ECF No. 152; Min.
Entry for Status Conf. on Jan. 28, 2022, ECF No. 156; Min. Entry
for Status Conf. on Apr. 26, 2022, ECF No. 158.
Yet by September 28, 2022, Graham had failed to meet
her obligations in this case for more than a month — without
explanation, as described above, and despite the impending
trial.

On this record, I dismissed the case pursuant to Rule
5

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41(b) of the Federal Rules of Civil Procedure.

See Min. Entry

for Status Conf. on Sept. 28, 2022, ECF No. 181.
Legal Standard
Under Federal Rule of Civil Procedure 41(b), a
district court may dismiss an action “if the plaintiff fails to
prosecute or to comply with the rules or a court order.” Baptise
v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014).8

When weighing

dismissal pursuant to Rule 41(b), a court must consider “(1) the
duration of the plaintiff’s failure to comply with the court
order, (2) whether plaintiff was on notice that failure to
comply would result in dismissal, (3) whether the defendants are
likely to be prejudiced by further delay in the proceedings, (4)
a balancing of the court’s interest in managing its docket with
the plaintiff’s interest in receiving a fair chance to be heard,
and (5) whether the judge has adequately considered a sanction
less drastic than dismissal.”
is dispositive.

Id.

In general, no single factor

Id.

The standard for a Rule 41(b) dismissal – “the
harshest of sanctions” – is especially high in the context of a
pro se litigant’s claim.

Mitchell v. Lyons Pro. Servs., Inc.,

708 F.3d 463, 467 (2d Cir. 2013); LeSane v. Hall’s Sec. Analyst,
Inc., 239 F.3d 206, 209 (2d Cir. 2001) (the “decision to dismiss

8

Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits citations and internal quotation marks.
6

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a pro se litigant’s complaint [is warranted] only when the
circumstances are sufficiently extreme”).

When considering a

dispositive motion made by or against a pro se litigant, courts
generally afford the litigant “special solicitude.”
Lewinski, 848 F.2d 342, 344 (2d Cir. 1988).

Graham v.

Nevertheless, “all

litigants, including pro ses, have an obligation to comply with
court orders.

When they flout that obligation they, like all

litigants, must suffer the consequences of their actions.”
McDonald v. Head Crim. Ct. Supervisor Officer, 850 F.2d 121, 124
(2d Cir. 1988); see also Yadav v. Brookhaven Nat’l Lab’y, 487 F.
App’x 671, 672 (2d Cir. 2012) (pro se litigants still must
“attempt to comply with procedural rules, especially when they
can be understood without legal training and experience”).
Discussion
Weighing the Rule 41(b) dismissal factors, dismissal
is clearly appropriate in this case.

Indeed, all five factors

favor dismissal.
A.

Duration of Graham’s Failure to Prosecute
Under the circumstances, Graham’s delay was

significant.

Forty days passed between her release from custody

on August 19, 2022 and the status conference on September 28,
2022.

Throughout this period, Graham failed to file a change-

of-address notice despite her obligation to do so.

All

plaintiffs, whether represented or proceeding pro se, are
7

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“obligated to notify the court when [they] change[] addresses.”
Canario-Duran v. Borecky, No. 10-CV-1736, 2011 WL 176745, at *1
(E.D.N.Y. Jan. 19, 2011).

Unlike many procedural requirements,

this requirement does not require any specialized knowledge or
training to understand.

See Yadav, 487 App’x at 672.

Indeed,

Graham had previously filed change-of-address notices on eight
occasions in this case.9

See, Pl.’s Notices of Change of

Address, ECF Nos. 16, 54, 66, 81, 108, 117, 118, 151.

Moreover,

I twice directed her to submit such a notice on the docket.

See

Order dated Sept. 2, 2022; Min. Entry for Status Conf. on Sept.
12, 2022, ECF No. 166.

Courts have repeatedly held that a

plaintiff’s “failure to maintain [] an address with the Court”
is a sufficient ground to dismiss for failure to prosecute.
Pratt v. Behari, No. 11-CV-6167, 2012 WL 1021660, at *1
(S.D.N.Y. Mar. 26, 2012) (warning a plaintiff released from
custody that absent updated address information, his case would
be dismissed for failure to prosecute, and citing cases).
Although a lapse of forty days may be rectified
relatively easily in certain contexts, the instant hiatus
occurred during the crucial period preceding trial, which was

9 It bears noting that Graham is a serial filer in this District.
When
Graham first commenced this action on June 28, 2016, it marked the tenth
action she had filed in the Eastern District of New York since October 2,
2014. See Order dated July 20, 2016, ECF No. 5, at 1. On April 30, 2015,
she was permanently enjoined and restrained from filing any new in forma
pauperis actions in this District without leave of the Court. Id.

8

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scheduled for October 3, 2022.

During this period, in addition

to failing to notify the Court of her new address, Graham was
absent from three status conferences and missed several pretrial
filing deadlines.

See supra.

The resulting uncertainty left

the defendants to wonder whether the trial for which they were
assiduously preparing would go forward as planned.
Moreover, there is no question that Graham knew of the
impending trial date; she had been on notice of it since April
26, 2022.
No. 158.

See Min. Entry for Status Conf. on Apr. 26, 2022, ECF
Still, on the eve of trial, Graham was repeatedly

absent from court.

See Lewis v. Rawson, 564 F.3d 569, 580 (2d

Cir. 2009) (“It is beyond dispute under our precedent that a
district court may dismiss a case under Rule 41(b) when the
plaintiff refuses to go forward with a properly scheduled
trial.”).
B.

Accordingly, this factor favors dismissal.

Notice to Graham That Further Delays Would Lead to
Dismissal
The Court notified Graham three times in writing that

failure to prosecute the case could result in dismissal.

The

Second Circuit has recognized that “[d]ismissal of a pro se
litigant’s action may be appropriate so long as a warning has
been given that non-compliance can result in dismissal.”

Agiwal

v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009);
see also Yadav, 487 F. App’x at 673 (holding that three verbal

9

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warnings constituted “ample notice”).

Graham first received

notice that dismissal was a potential sanction on November 2,
2021.

See Order dated Nov. 2, 2021 (warning that “the Court

will consider dismissing the case for failure to prosecute”).
The Court gave the same notice again nearly a year later on
September 12, 2022.

See Min. Entry for Status Conf. on Sept.

12, 2022, ECF No. 166 (“Plaintiff is again directed to notify
the Court of her change of address; otherwise, this case may be
dismissed for failure to prosecute.”).
warning on September 22, 2022.

The Court issued a third

See Order by Magistrate Judge

Cho dated Sept. 22, 2022 (warning that “continued noncompliance
with Court orders may result in . . . this case be[ing]
dismissed for failure to prosecute and failure to comply with
court orders”).

Further, both the Court and the City

defendants’ counsel made substantial – though unsuccessful –
efforts to contact Graham by phone, email, and mail based on her
last known contact information.

See, e.g., id.; Defs.’ Br. 8-9.

For these reasons, this factor weighs heavily in favor of
dismissal.
C.

Potential Prejudice of Further Delay to Defendants
Further delay in this case would cause substantial

prejudice to the defendants.

The prospect of a federal trial

involving allegations of serious professional misconduct is a
heavy weight for a person to bear for any period of time, let
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alone more than six years.

Moreover, a decision to afford

Graham additional accommodations would have required
rescheduling the trial just days before it was set to commence
and after prospective jurors had already been summoned.

See

Lewis, 564 F.3d at 580 (noting that dismissal is appropriate
when “the plaintiff, without offering some explanation that is
satisfactory to the court, is not ready to present his or her
case at trial”).

Based on Graham’s track record to date, the

defendants would have had no assurance that Graham would
reliably prosecute the case to a new trial date, leaving them to
carry their burden into an uncertain new phase.

Moreover, given

the backlog on the Court’s trial calendar (as discussed in the
next section), a rescheduled trial would not have occurred for
many months at least.
The defendants have already expended substantial time
and money defending against Graham’s allegations.

Prior to my

order dismissing this case on September 28, 2022, the City
defendants’ counsel had been preparing for a trial slated to
begin the following week.

If trial had been rescheduled at the

last minute, their efforts at preparation would have needed to
be repeated – at least in part – at some future date, rendering
the previous expense of time wasted.

See Greene v. City of New

York, No. 19-CV-873, 2020 WL 2840521, at *3 (E.D.N.Y. Apr. 23,
2020), R. & R. adopted, No. 19-CV-873, 2020 WL 2836785 (E.D.N.Y.
11

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June 1, 2020) (further delay would cause prejudice “in the form
of wasted time and resources”).

And because memories fade and

witnesses disperse, their task would only have been more
difficult the second time.

See Shannon v. Gen. Elec. Co.,

186 F.3d 186, 195 (2d Cir. 1999) (“delay by one party increases
the likelihood that evidence in support of the other party’s
position will be lost and that discovery and trial will be made
more difficult”).
Based on the substantial costs that the defendants and
their counsel would have suffered from further delay, this
factor strongly favors dismissal.
D.

Need to Balance Court’s Resources with Graham’s Rights
On the whole, the Court’s need to conserve resources

outweighs Graham’s right to continue this case.

Despite having

had ample opportunity to be heard during the course of this sixyear litigation, Graham failed to comply with court orders and
ultimately went silent at two critical junctures: first, after a
dispute arose concerning the existence of an agreement in
principle to settle her claims, and second, just before a jury
was set to hear her case.

See supra Section II.

While Graham

is owed “special solicitude” as a pro se litigant, her rights
here are not unlimited.

See Yadav, 487 F. App’x at 672-73

(affirming dismissal of pro se action where plaintiff repeatedly

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failed to meet discovery obligations and received warnings that
continued noncompliance could result in dismissal).
On the other hand, time on the Court’s trial calendar
is at a premium at the moment.

Since resuming in-person

operations following the onset of the COVID-19 pandemic, this
District has faced a densely populated trial calendar.

The

undersigned, like other judges in this District, has multiple
trials scheduled for the same day – in the event that the
primary trial cannot go forward – at repeated intervals over the
next year.

As a result, it would have been very difficult to

find a new trial date for this case in the near future.

Thus,

this factor also favors dismissal.
E.

Efficacy of Imposing Lesser Sanctions
Finally, there is no basis to conclude that a lesser

sanction would have been effective here.

Graham has repeatedly

failed to comply with Court orders over the course of this
litigation and has twice had unexplained absences at key
moments.

See supra Section II.

Moreover, her in forma pauperis

status suggests that she would be unable to afford a monetary
sanction.

This factor, too, supports dismissal.

See Wilson v.

Doe 1-4, No. 21-CV-5170, 2022 WL 2065030, at *2 (E.D.N.Y. June
8, 2022) (finding that this factor favored dismissal in a case
involving similar considerations).

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Conclusion
Because all five factors support dismissal, Graham’s
action is dismissed with prejudice pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure.

The Court certifies pursuant

to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in
good faith and therefore in forma pauperis status is denied for
the purpose of an appeal.
U.S. 438, 444-45 (1962).

See Coppedge v. United States, 369
The Clerk of the Court is respectfully

directed to enter judgment and close this case.

SO ORDERED.

/s/ Eric Komitee__________
ERIC KOMITEE
United States District Judge
Dated:

October 19, 2022
Brooklyn, New York

14