Gray-Davis v. The State of New York et al

Filing 44

DECISION AND ORDER dismissing Plaintiffs' claims against John Does Nos. 1-4, as well as dismissing Plaintiffs' complaint. Signed by Chief Judge Glenn T. Suddaby on 9/23/16. (lmw) (Copy served upon pro se plaintiff via regular and certified mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
LaFRANCIS GRAY-DAVIS, on her own and on
behalf of her son, Myrell Davis; and MYRELL
DAVIS,
Plaintiffs,

5:14-CV-1490

v.
JOHN DOE NOS. 1-4, Parole Officers,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

LaFRANCIS GRAY-DAVIS
Plaintiff, Pro Se
439 Gifford Street
Syracuse, NY 13204
DeROBERTS LAW FIRM
Attorney for Myrell Davis
The Monroe Building, 3rd Floor
333 East Onondaga Street
Syracuse, NY 13202

JEFFREY DeROBERTS, ESQ.

HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
615 Erie Boulevard West, Suite 102
Syracuse, NY 13204-2455

TIMOTHY P. MULVEY, ESQ.
Assistant Attorney General

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
On March 31, 2016, the Court issued a Decision and Order that, inter alia, directed
LaFrancis Gray-Davis and Myrell Davis (“Plaintiffs”) to take reasonable steps to identify John
Doe Nos. 1-4, and set the deadline for Plaintiffs to move to amend their Complaint as May 31,

2016. (Dkt. No. 40, at 18-19.) Instead of doing so, Plaintiffs filed a notice of interlocutory
appeal on May 2, 2016. (Dkt. No. 41.) On July 6, 2016, the Second Circuit dismissed Plaintiffs’
appeal. (Dkt. No. 43.) As of the date of this Decision and Order, Plaintiffs have neither moved
to amend their Complaint nor requested an extension of the deadline to do so. (See generally
Docket Sheet.)
Even if the Court were to liberally construe the pendency of Plaintiffs’ interlocutory
appeal (which was filed 32 days into the 61-day motion-filing deadline) as having tolled the
motion-filing deadline, the Court would find that the motion-filing deadline expired on August 4,
2016 (29 days after the issuance of the Second Circuit’s dismissal). As a result, the Court finds
that Plaintiffs have willfully failed to comply with the Court’s Decision and Order of March 31,
2016.1
The Second Circuit has identified five factors that it considers when reviewing a district
court’s order to dismiss an action for failure to prosecute or failure to obey a court order under
Fed. R. Civ. P. 41(b):
(1) the duration of the plaintiff’s failures, (2) whether plaintiff had
received notice that further delays would result in dismissal, (3)
whether the defendant is likely to be prejudiced by further delay, (4)
whether the district judge has taken care to strike the balance between
alleviating court calendar congestion and protecting a party’s right to

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Furthermore, to the extent such a finding is required by Fed. R. Civ. P. 83(a)(2),
the Court finds that Plaintiffs’ failure was willful. The Court notes that Plaintiff Myrell Davis is
represented by counsel, and that Plaintiff LaFrancis Gray-Davis received a courtesy copy of both
the Local Rules of Practice and Pro Se Handbook on December 11, 2014. (Dkt. No. 3.)
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due process and a fair chance to be heard and (5) whether the judge
has adequately assessed the efficacy of lesser sanctions.
Hevner v. Village East Towers, Inc., No. 07-5608, 2008 WL 4280070, at *1-2 (2d Cir. Sept. 18,
2008) [citation omitted].
Here, with regard to the first factor, the Court finds the duration of Plaintiffs’ failures to
be between 50 and 114 days (having begun, at the latest, on August 4, 2016, and more
appropriately, on May 31, 2016). While such a delay is not as egregious as some other delays, it
is certainly significant, especially when considered in light of the fact that Plaintiffs’ pursuit of
their claims against John Doe Nos. 1-4 before March 31, 2016 (when the Court issued its final
directive) can hardly be characterized as diligent. (Dkt. No. 40, at 18.) As a result, the Court
finds that this factor weighs, albeit slightly, in favor of dismissal.
With regard to the second factor, the Court finds that Plaintiffs received adequate notice
that further delays would result in dismissal. More specifically, the Court finds that Plaintiffs
received such notice through the following five docket entries: Dkt. No. 3, at 3
[Acknowledgment of Receipt, acknowledging receipt of courtesy copy District’s Pro Se
Handbook, page 8 and 9 of which regard to duty to identify John Doe Defendants]; Dkt. No.
6, at 17-18 [Report-Recommendation, reminding Plaintiffs of duty]; Dkt. No. 7, at 5 [Decision
and Order, reminding Plaintiffs of duty]; Dkt. No. 40, at 18 [“Plaintiffs are again reminded . . .
that they must take reasonable steps to identify John Doe Nos. 1-4, and move to amend their
Complaint to name the proper parties, or their Complaint will be dismissed.”] [emphasis in
original]. As a result, the Court finds that this factor weighs in favor of dismissal.

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With regard to the third factor, the Court finds that the prejudice posed to Defendants by
Plaintiffs’ failure is exacerbated by the age of the case (which was filed on December 11, 2014),
the number of events giving rise to Plaintiffs’ claims, and the dates of those events (which
occurred between July 30, 2013, and April 1, 2014). Under the circumstances, a further delay
may well affect witnesses' memories, the ability to locate witnesses (who might retire from, or be
transferred within, the New York State Division of Parole and/or New York State Department of
Corrections and Community Supervision), and the preservation of evidence. See Geordiadis v.
First Boston Corp., 167 F.R.D. 24, 25 (S.D.N.Y. 1996) (“The passage of time always threatens
difficulty as memories fade. Given the age of this case, that problem probably is severe already.
The additional delay that plaintiff has caused here can only make matters worse.”). As a result,
the Court finds that this factor weighs in favor of dismissal.
With regard to the fourth factor, the Court finds that the need to alleviate congestion on
the Court's docket outweighs Plaintiffs’ right to receive a further chance to be heard in this case
(which has been pending since December 11, 2014). The Court notes that “[i]t is the need to
monitor and manage cases such as this one that delay the resolution of other cases, and that
contribute to the Second Circuit's relatively long median time to disposition for such civil cases.”
Coleman v. Syracuse, 14-CV-1521, 2016 WL 770058, at *2 (N.D.N.Y. Jan. 14, 2016) (Dancks,
M.J.). As a result, the Court finds that this factor weighs in favor of dismissal.
With regard to the fifth factor, the Court has carefully considered sanctions less drastic
than dismissal and finds them to be inadequate under the circumstances. For example, based on
Plaintiffs’ prior disregard of the Court’s admonishment of May 31, 2016, the Court finds that an
order reprimanding Plaintiffs for their dilatory conduct would likely be futile. In addition, in

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light of Plaintiff LaFrancis Gray-Davis' in forma pauperis status (and the fact that Plaintiff
Myrell Davis is her minor child), the Court finds that issuing monetary sanctions would not be
an effective remedy. The Court notes that, while district courts in this Circuit have a duty to
extend special solicitude to pro se litigants like Plaintiff LaFrancis Gray-Davis, those litigants
are not excused from complying with court orders. See McDonald v. Head of Criminal Court
Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988) (affirming the district court's dismissal of a
pro se plaintiff's complaint due to the plaintiff's bad faith non-compliance with a court order).
As a result, the Court finds that this factor weighs in favor of dismissal.
In sum, after balancing the above-described five factors, the Court finds that they weigh
decidedly in favor of dismissal.
ACCORDINGLY, it is
ORDERED that Plaintiffs’ claims against John Doe Nos. 1-4, as well as Plaintiffs’
Complaint (Dkt. No. 1), are DISMISSED; and it is further
ORDERED that the Clerk of the Court shall issue a Judgment for Defendants and close
this action.
Dated:

September 23, 2016
Syracuse, NY
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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