Jones v. Department of Homeless Services et al
MEMORANDUM AND ORDER: As set forth in the attached Memorandum and Order, Plaintiff's complaint is dismissed without prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). The Clerk of Court is respectfully directe d to mail a copy of this Order to Plaintiff's last known address and close this case. 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 any appeal. See Coppedge v. United States, 369 U.S. 438, 44445 (1962). Ordered by Judge LaShann DeArcy Hall on 9/19/2022. (Williams, Erica)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
KATRINA A. JONES,
NOT FOR PUBLICATION
MEMORANDUM AND ORDER
DEPARTMENT OF HOMELESS SERVICES,
CAPTAIN HENRY, and DEPUTY INSPECTOR
LASHANN DEARCY HALL, United States District Judge:
Katrina Jones (“Plaintiff”), proceeding pro se, filed this action against Department of
Homeless Services (“DHS”), Captain Henry, and Deputy Inspector Dabouise (collectively
“Defendants”), pursuant to the Americans with Disabilities Act of 1990. For the reasons
discussed below, the complaint is dismissed without prejudice for failure to prosecute.
Plaintiff commenced the instant action on June 19, 2020. (Compl., ECF No. 1.) Plaintiff
alleges that the Department of Homeless Services failed to provide her with reasonable
accommodations in contravention of the Americans with Disabilities Act. (Id. at 6.) By order
dated August 14, 2020, the Court granted Plaintiff’s request to proceed in forma pauperis.
Defendants requested a pre-motion conference seeking leave to file a motion to dismiss the
complaint on December 1, 2021. (Def.’s Pre-Motion Conference Request, ECF No. 20.) By
order dated December 20, 2021, Plaintiff was directed to file a response to Defendant’s request
The following facts are taken from the complaint and are assumed to be true for the purpose of this memorandum
and order. The Court refers to the page numbers assigned by the court’s ECF system.
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for a pre-motion conference regarding its anticipated motion to dismiss on or before January 24,
2022. Plaintiff failed to file a response. By order dated March 14, 2022, Plaintiff was again
directed to file a response to the Defendant’s pre-motion conference request by April 1, 2022. In
the same order, Plaintiff was warned that “[f]ailure to abide by this order may result in dismissal
of Plaintiff’s case for failure to prosecute.” Plaintiff again failed to file a response. By order
dated April 25, 2022, Plaintiff was directed a third time to file a response by May 27, 2022. In
the same order, Plaintiff was again warned again that failure to file a response could result in
dismissal of the action for failure to prosecute. Despite these Court orders, Plaintiff has yet to
respond to the Defendant’s motion. Indeed, she has not filed anything on the docket in more
than a year.
A district judge may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b)
if “the plaintiff fails to prosecute or to comply with [the] rules or a court order[.]” Fed. R. Civ.
P. 41(b). The prudent application of this rule is “‘vital to the efficient administration of judicial
affairs and provides meaningful access for other prospective litigants to overcrowded courts.’”
Manshul Const. Corp. v. Int’l Fid. Ins. Co., 182 F.3d 900, 900, 1999 WL 461756, at *2 (2d Cir.
1999) (unpublished table opinion) (quoting Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42
(2d Cir. 1982)) (dismissing sua sponte with prejudice). Notwithstanding its benefits, disposal of
cases for want of prosecution is “‘a harsh remedy to be utilized only in extreme situations.’”
LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (quoting Theilmann v.
Rutland Hospital, Inc., 455 F.3d 853, 855 (2d Cir. 1972) (per curiam)). Thus, as a procedural
safeguard, district courts must balance five factors, none of which are dispositive, when
determining the propriety of dismissal for failure to prosecute under Rule 41(b):
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(1) the duration of the plaintiff’s failure to comply with the court order, (2)
whether [the] 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
Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (quoting Lucas v. Miles, 84 F.3d 532, 535
(2d Cir. 1996)).
The Second Circuit has cautioned that “district courts should be especially hesitant to
dismiss for procedural deficiencies where, as here, the failure is by a pro se litigant.” Lucas, 84
F.3d at 535. That said, the latitude afforded to unrepresented parties does not exempt them from
diligently prosecuting their cases; pro se litigants are still “required to attempt to comply with
procedural rules, especially when they can be understood without legal training and experience.”
Yadav v. Brookhaven Nat’l Lab’y., 487 F. App’x 671, 672 (2d Cir. 2012) (summary order)
(affirming dismissal for failure to prosecute where pro se litigant did not respond to discovery for
Dismissal is proper here. First, more than eight months have lapsed since Plaintiff was
first directed to Defendant’s letter requesting a pre-motion conference. (See Dec. 20, 2021
Order.) As the Second Circuit has found, seven months of inaction is enough to satisfy this
factor. See, e.g., Ruzsa v. Rubenstein & Sendy Attys at Law, 520 F.3d 176, 177 (2d Cir. 2008)
(per curiam) (affirming dismissal of pro se action for failure to prosecute after seven months of
inaction); see also Brow v. City of N.Y., 391 F. App’x 935, 937 (2d Cir. 2010) (affirming district
court’s judgment of dismissal for failure to prosecute after plaintiff caused a delay of “nearly six
months” by repeatedly failing to appear for his deposition). Without question, a more than eightmonth delay is enough.
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Second, Plaintiff has already been given two clear notices that failure to comply with the
Court’s directives would result in dismissal for failure to prosecute. Plaintiff has failed to
respond to three orders by the Court spanning the course of eight months granting her additional
time to respond to Defendant’s request. And, in both the March 14, 2022 and April 25, 2022
orders, Plaintiff was warned that a failure to file a response may result in dismissal of her
complaint for failure to prosecute. Such notices are sufficient to support dismissal here. See,
e.g., Hunter v. New York State Dep’t of Corr. Servs., 515 F. App’x 40, 43 (2d Cir. 2013) (finding
sufficient notice of dismissal where the “record reveals that [plaintiff] received at least two
notices that her action could be dismissed for a failure to prosecute.”).
Third, any further delay would prejudice Defendants. Whether a defendant has been
prejudiced “turns on the degree to which the delay was lengthy and inexcusable.” U.S. ex rel.
Drake v. Norden Sys., Inc., 375 F.3d 248, 256 (2d Cir. 2004). Courts may presume such
prejudice where Plaintiff has caused an “unreasonable delay.” Lyell Theatre Corp., 682 F.2d at
43. Indeed, the Second Circuit has affirmed dismissal for failure to prosecute when considering
shorter delays. See, e.g., Brow, 391 F. App’x at 937 (affirming dismissal where Plaintiff caused
a delay of six months). Here, Plaintiff has inexplicably caused an eight-month delay by failing to
respond to Defendant’s request for a pre-motion conference despite the Court’s orders directing
Plaintiff to do so. As such, Defendants are presumed to be prejudiced.
Fourth, a balancing of the Court’s interest in managing its docket and Plaintiff’s interest
in her chance to be heard weighs in favor of dismissal. This prong is satisfied where the Court
affords a plaintiff “ample time to inform the Court that [s]he [stands] ready to press [her]
claims[.]” See Ruzsa, 520 F.3d at 177–78. Here, the Court has issued three orders over an eightmonth period directing Plaintiff to respond to Defendants’ request for a pre-motion conference.
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More than three months have lapsed since the issuance of the Court’s most recent order, yet
Plaintiff has failed to respond. In other words, Plaintiff has been given ample time to indicate
her readiness to proceed. See id. (finding fourth prong satisfied where dismissal was delayed for
Fifth, given Plaintiff’s repeated failure to respond to the Court’s orders, no lesser
sanctions would be effective. See, e.g., Horton v. City of New York, No. 14-CV-4279, 2015 WL
13021411, at *2 (E.D.N.Y. Jan. 9, 2015) (“Plaintiff has made no effort to comply with the
Court’s orders and prosecute this case, despite warning from this Court that the case would be
dismissed. Further warnings are likely to be futile. No lesser sanction would be effective and
dismissal at this juncture is the only appropriate course.”), report and recommendation adopted,
No. 14-CV-4279, 2015 WL 13019585, at *1 (E.D.N.Y. Feb. 2, 2015), aff’d, 636 F. App’x 822,
824 (2d Cir. 2016); see also Ruzsa, 520 F.3d at 178 (“in light of [plaintiff’s] failure to respond to
the notice threatening dismissal, it is equally unclear that a ‘lesser sanction’ would have proved
effective in this case”). Indeed, in light of the substantial period that has lapsed since Plaintiff
has taken any action in the case, the Court is hard pressed to see how any other sanction might
move Plaintiff to act.
For the foregoing reasons, this action is dismissed without prejudice. The Clerk of Court
is respectfully directed to mail a copy of this Order to Plaintiff's last known address. 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 any appeal. See Coppedge v.
United States, 369 U.S. 438, 444–45 (1962).
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Dated: Brooklyn, New York
September 19, 2022
LaSHANN DeARCY HALL
United States District Judge
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