Keyes v. District Attorney's Office et al

Filing 6

ORDER; In consideration of the above factors, the case is DISMISSED WITHOUT PREJUDICE pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The Clerk of the Court shall enter judgment accordingly and mail a copy of this Order to the pro se Plaintiff at her last known address. 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. The Clerk of the Court is directed to DISMISS this case WITHOUT PREJUDICE and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 6/30/2017. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
KEYSEAN L. KEYES, #15008025,
Plaintiff,

ORDER
17-CV-1363 (JS)(GRB)

-againstDISTRICT ATTORNEY’S OFFICE
and MADELINE SINGAS,
Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Keysean L. Keyes, pro se
15008025
Nassau County Correctional Center
100 Carman Avenue
East Meadow, NY 11554
For Defendants:

No appearances.

SEYBERT, District Judge:
On March 2, 2017, incarcerated pro se plaintiff Keysean
L. Keyes (“Plaintiff”) commenced this action.

Plaintiff did not

pay the Court’s filing fee nor did she file an application to
proceed in forma pauperis.

Accordingly, by Notice of Deficiency

dated March 10, 2017 (the “Notice”), Plaintiff was advised that, in
order for her case to proceed, she must either: (1) remit the $400
filing fee, or (2) complete and return the application to proceed
in forma pauperis and Prisoner Authorization form (“PLRA”) within
fourteen (14) days from the date of the Notice.
Entry 2.)
timely

(See Docket

The Notice cautioned Plaintiff that her failure to

remit

the

filing

fee

or

file

the

in

forma

pauperis

application and PLRA may lead to the dismissal of this case for
failure to prosecute.

However, on March 22, 2017, the Notice was

returned to the Court and was marked “undeliverable” and “return to
sender”.
the

(See Docket Entry 5.)

filing

fee

or

filed

an

To date, Plaintiff has not paid

application

to

proceed

in

forma

pauperis, nor has she updated her address or otherwise communicated
with the Court about this case.
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, 82 S. Ct. 1386, 1390, 8 L. Ed. 2d 734 (1962)); see
also FED. R. CIV. P. 41(b).

Courts have repeatedly found that

“dismissal of an action is warranted when a litigant, whether
represented or instead proceeding pro se, fails to comply with
legitimate court directives.”

Kuar v. Mawn, No. 08-CV-4401, 2012

WL 3808620, at *3 (E.D.N.Y Sept. 4, 2012) (internal quotation
marks,

citation,

and

alteration

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
non-compliance; 2) whether plaintiff
notice that such conduct would result
dismissal; 3) whether prejudice to
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or
had
in
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)
whether the court adequately considered the
efficacy of a sanction less draconian than
dismissal.
Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 63
(2d Cir. 2000); see, e.g., Jackson v. City of N.Y., 22 F.3d 71,
74-76 (2d Cir. 1994); see also Peart v. City of N.Y., 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 (2d Cir.
1981))).

In

deciding

whether

dismissal

“[g]enerally, no one factor is dispositive.”

is

appropriate,

Nita v. Conn. Dep’t

of Env. Prot., 16 F.3d 482, 485 (2d Cir. 1994).

In addition,

“[w]hen a party changes addresses, it is his or her obligation to
notify the Court of the new address.”

Garcia v. Hynes, No. 08-CV-

2155, 2009 WL 890640, at *1 (E.D.N.Y. Mar. 31, 2009) (citing
Concepcion v. Ross, No. 92-CV-0770, 1997 WL 777943, at *1 (E.D.N.Y.
Oct. 28, 1997)) (citing Local Civil Rule 1.3(d) and holding “[t]he
responsibility for keeping the court informed of changes of address
rests with the petitioner.”).
Here, Plaintiff has failed to communicate with the Court
about this case since filing her Complaint and appears to no longer
be at the address listed in her Complaint.
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Nor has she filed a

Notice of Change of Address.
longer

interested

in

Thus, it appears Plaintiff is no

pursuing

this

action.

Under

these

circumstances, no sanction less than dismissal will alleviate the
prejudice to Defendants 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.
However,

under

sanction

of

the

circumstances

dismissal

without

described
prejudice

above,
(rather

the
than

lesser
with

prejudice) is appropriate in order to strike the appropriate
balance between the right to due process and the need to clear the
docket and avoid prejudice to Defendants by retaining open lawsuits
with no activity.

Accordingly, in consideration of the above

factors, the case is DISMISSED WITHOUT PREJUDICE pursuant to Rule
41(b) of the Federal Rules of Civil Procedure.

The Clerk of the

Court shall enter judgment accordingly and mail a copy of this
Order to the pro se Plaintiff at her last known address.

[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]

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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, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to DISMISS this case
WITHOUT PREJUDICE and mark this case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBER
Joanna Seybert, U.S.D.J.
Dated:
cc:

June
30 , 2017
Central Islip, New York

Keysean L. Keyes
P.O. Box 1812
Mineola, NY 11501

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