Keyes v. District Attorney's Office et al
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
KEYSEAN L. KEYES, #15008025,
-againstDISTRICT ATTORNEY’S OFFICE
and MADELINE SINGAS,
Keysean L. Keyes, pro se
Nassau County Correctional Center
100 Carman Avenue
East Meadow, NY 11554
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.
The Notice cautioned Plaintiff that her failure to
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
(See Docket Entry 5.)
To date, Plaintiff has not paid
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
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
defendant is likely to result; 4) whether the
court balanced its interest in managing its
receiving an opportunity to be heard; and 5)
whether the court adequately considered the
efficacy of a sanction less draconian than
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.
“[g]enerally, no one factor is dispositive.”
Nita v. Conn. Dep’t
of Env. Prot., 16 F.3d 482, 485 (2d Cir. 1994).
“[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.
Nor has she filed a
Notice of Change of Address.
Thus, it appears Plaintiff is no
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.
the above-referenced factors favor dismissal of the instant case.
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]
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.
/s/ JOANNA SEYBER
Joanna Seybert, U.S.D.J.
30 , 2017
Central Islip, New York
Keysean L. Keyes
P.O. Box 1812
Mineola, NY 11501
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