Butler v. Suffolk County Police Dept. et al

Filing 37

MEMORANDUM AND ORDER the above-referenced factors favor dismissal of this action pursuant to Rule 41 (b) of the Federal Rules of Civil Procedure. The Clerk of the Court shall close this case. The Court certifies pursuant to 28 U.S. C. § 1915( a )(3) that any appeal from this Order would not be takenin good faith and therefore in forma pauperis status is denied for the purpose of any appeal. Ordered by Judge Joseph F. Bianco on 3/23/2015. (Bollbach, Jean) cm by chambers to pro se by fcm on 3/23/15

FILE 0

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

IN CLERK'S OFF~Cefo.N.Y.
U.S. DISTRICT COUR
.

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MAR 2Q 2Q1S

*

KEITH TERRELL BUTLER,
;LONG ISLAND OFFICE

Plaintiff,
MEMORANDUM AND ORDER
13-CV-01507 (JFB)(AYS)

-againstEDWARD ZIMMERMAN (SUFFOLK COUNTY
POLICE DEPARTMENT),
Defendant.

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JOSEPH F. BIANCO, District Judge:

On March 18, 2013,pro se plaintiff Keith Butler filed a complaint pursuant to 42 U.S.C. §
1983, asserting that several government officials violated his constitutional rights. By Memorandum
and Order dated October 30, 2013, the Court dismissed plaintiffs claims against all defendants
except for defendant Police Officer Edward Zimmerman. On November 26, 2013, defendant
Zimmerman interposed an answer to the complaint. Magistrate Judge Locke issued an order on
October 21, 2014, scheduling an initial conference for November 19, 2014. By letter dated October
23, 2014, counsel for the defendant notified the Court that plaintiff had been released from custody,
and his current address was unknown. The Court adjourned the conference without date, with notice
that the conference would be rescheduled once plaintiff updated his mailing address to the Court.
The order adjourning the conference was returned to the Court as undeliverable. On January 20,
2015, Magistrate Judge Locke issued an order directing plaintiff to provide his contact information
and the status of the action; the order further warned plaintiff that failure to respond to the order
would result in dismissal of this action. That order was returned to the Court as undeliverable, and
to date, plaintiff has not communicated with the Court since October I, 2014. It therefore appears
that plaintiff has abandoned this action. Accordingly, for the reasons set forth below, the Court

dismisses this action pursuant to Rule 4l(b) of the Federal Rules of Civil Procedure for failure to
prosecute.
Rule 41 (b) authorizes a district court to "dismiss a complaint for failure to comply with a
court order, treating the noncompliance as a failure to prosecute." Simmons v. Abruzzo, 49 F.3d 83,
87 (2d Cir. 1995) (citing Link v. Wabash R.R. Co., 370 U.S. 626,633 (1962)); see Lucas v. Miles,
84 F.3d 532, 535 (2d Cir. 1996) ("[D]ismissal [pursuant to Rule 41(b)] is a harsh remedy and is
appropriate only in extreme situations."); Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir. 2004)
("Rule [41(b)] is intended to serve as a rarely employed, but useful, tool ofjudicia1 administration
available to district courts in managing their specific cases and general caseload."). Moreover, it is
well-settled that a district court "may act sua sponte to dismiss a suit for failure to prosecute."

Chambers v. NASCO, Inc., 501 U.S. 32,44 (1991) (citing Link, 370 U.S. at 630); see also LeSane
v. Hall's Sec. Analyst, Inc., 239 F.3d 206,209 (2dCir. 2001) ("Although the text of Fed. R. Civ. P.
41 (b) expressly addresses only the case in which a defendant moves for dismissal of an action, it is
unquestioned that Rule 41 (b) also gives the district court authority to dismiss a plaintiff's case sua

sponte for failure to prosecute.").
Courts have repeatedly found that "[d]ismissal of an action is warranted when a litigant,
whether represented or instead proceeding prose, fails to comply with legitimate court directives."

Yulle v. Barkley, No. 9:05-CV-0802, 2007 WL 2156644, at *2 (N.D.N.Y. July 25, 2007) (citations
omitted). A district court contemplating dismissal of a plaintiff's claim for failure to prosecute and/or
to comply with a court order pursuant to Rule 41 (b) must consider:
1) the duration of plaintiff's failures or non-compliance; 2) whether plaintiff had
notice that such conduct would result in dismissal; 3) whether prejudice to the
defendant is likely to result; 4) whether the court balanced its interest in managing
its docket against plaintiff's interest in receiving an opportunity to be heard; and 5)
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whether the court adequately considered the efficacy ofa sanction less draconian than
dismissal.

Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 63 (2d Cir. 2000). In deciding
whether dismissal is appropriate, "[g]enerally, no one factor is dispositive." Nita v. Conn. Dep 't of

Env. Prot., 16 F.3d 482,485 (2d Cir. 1994); see Peart v. City ofNew York, 992 F.2d 458, 461(2d
Cir. 1993) ("' [D]ismissal for want of prosecution is a matter committed to the discretion of the trial
judge [and] the judge's undoubtedly wide latitude is conditioned by certain minimal requirements."')
(quoting Merker v. Rice, 649 F.2d 171, 173-74 (2d Cir. 1981)).
Here, plaintiff has failed to communicate with the Court since October I, 2014. Plaintiff has
also failed to update his address since his release from prison in October 2014. Under these
circumstances, no sanction less than dismissal will alleviate the prejudice to defendant of continuing
to keep this action open. Moreover, the Court needs to avoid calendar congestion and ensure an
orderly and expeditious disposition of cases. Therefore, all the above-referenced factors favor
dismissal of the instant case.
Accordingly, the above-referenced factors favor dismissal of this action pursuant to Rule
41 (b) of the Federal Rules of Civil Procedure. The Clerk of the Court shall close this case. 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 the purpose of any appeal. See

Coppedge v. United States, 369 U.S. 438,444-45 (1962).
SO OBJ)ERED.

Jrf%PH Iy.BIANCO

Dated: March 23 , 2015

~ITED STATES DISTRICT JUDGE

Central Islip, New York
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