Wilson et al v. Phoenix House Inc. et al

Filing 23

MEMORANDUM AND ORDER - Pending before the Court is Dfts' motion to dismiss for Pltffs' failure to prosecute. For the reasons set forth herein, the Court GRANTS Dfts' 15 motion to dismiss. The case is dismissed with prejudice. The Clerk of Court is directed to terminate all pending motions and mark this matter CLOSED. Signed by Judge Joanna Seybert on 8/7/09. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------X JOSEPH WILSON, JOEL ATTERBURY, and DAVID MALONE, Plaintiffs, -againstPHOENIX HOUSE, INC. and BRIAN GILLAM, Defendants. -----------------------------------X APPEARANCES: For Plaintiffs: Joseph Wilson Joseph Wilson, Pro Se Phoenix House, Inc. 220 Veterans Highway Hauppauge, NY 11788 Joel Atterbury David Malone For Defendants: Joel Atterbury, Pro Se David Malone, Pro Se David L. Rosenthal, Esq. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP 150 East 42nd Street New York, NY 10017 MEMORANDUM & ORDER 07-CV-05028(JS)(ARL)

SEYBERT, District Judge: Pending before the Court is Defendants' motion to dismiss for Plaintiffs' failure to prosecute. For the reasons that follow, the Court GRANTS Defendants' motion. BACKGROUND On December 3, 2007, pro se Plaintiffs instituted this action claiming, inter alia, that Phoenix House, Inc. ("Phoenix House") and Brian Gilliam ("Gilliam") (collectively, "Defendants") (1) systematically deprived residents of Phoenix House of "their Constitutional Right to practice their religion" and (2) subjected

Plaintiffs to "unreasonable pain for staff not following the Doctor [sic] orders and not having the medication that was prescribed to ease the plaintiffs' pain." (Compl. 4.) The Court granted Defendants

Plaintiffs in forma pauperis status on March 19, 2008. filed an Answer on June 9, 2008.

From that point forward, the

Court has had no contact with the Plaintiffs, despite repeated attempts to contact them for conferences. Subsequently, Defendants filed a motion to dismiss this case for Plaintiffs' failure to prosecute. The motion remains unopposed, as Plaintiffs never

submitted an opposition. DISCUSSION In deciding whether to dismiss an action for want of prosecution, a trial court should consider (1) the duration of plaintiff's failures; (2) whether plaintiff . . . received notice that further delays would result in dismissal; (3) whether the defendant would be prejudiced by further delay; (4) whether the district judge has carefully balanced the need to alleviate court calendar congestion and a party's right to due process; and (5) whether the court has assessed the efficacy of lesser sanctions. Peart v. New York, 992 F.2d 458, 461 (2d Cir. N.Y. 1993). As noted

above, the Court has endured Plaintiffs' failure to proceed with this case for nearly fifteen months. Plaintiffs have not even

taken the minimal effort of calling this Court to check on the status of their case. Although Plaintiffs have not received notice that their further inaction would result in dismissal, the Court 2

notes that this lack of notice results directly from Plaintiffs' own failures: the Court has sent several communications to

Plaintiffs' old addresses and those communications were returned as undeliverable, and none of the Plaintiffs have contacted the Court to update their addresses; thus, the Court has no method for locating Plaintiffs. As to the third factor, the Court finds that

Plaintiffs' unreasonable dilatoriness has resulted in prejudice to the Commissioner. "Prejudice to defendants may be presumed from Lukensow v. Harley Cars of New York, 124

the length of the delay."

F.R.D. 64, 67 (S.D.N.Y. 1989) (finding that a two-year delay was sufficient evidence of prejudice). sanctions dismissal. are not warranted and Lastly, in this case, lesser court congestion warrants

In sum, the Court finds that dismissal is warranted

because this action has been "lying dormant with no significant activity to move it . . . ." Lyell Theatre Corp. v. Loews Corp.,

682 F.2d 37, 42 (2d Cir. 1982). CONCLUSION For the foregoing reasons, the Court GRANTS Defendants' motion to dismiss. The case is dismissed with prejudice. The

Clerk of the Court is directed to terminate all pending motions and mark this matter CLOSED. SO ORDERED. /s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J.

Dated:

August 7 , 2009 Central Islip, New York 3