Phillips v. Proud et al

Filing 69

DECISION AND ORDERED, that Defendants Motion to Dismiss (Dkt. No. 54) is GRANTED, and the Complaint is DISMISSED with prejudice as to all claims except for the malicious prosecution claim, which is DISMISSED without prejudice. Signed by Senior Judge Lawrence E. Kahn on October 30, 2018. (Copy served via regular and certified mail)(sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CLIFTON PHILLIPS,
Plaintiff,
-against-

5:16-CV-1140 (LEK/ATB)

DAVID PROUD, et al.,
Defendants.

DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Clifton Phillips brought this pro se civil-rights action under 42 U.S.C. § 1983,

alleging that defendant police officers, government officials, and governmental entities violated
his Fourth, Fifth, and Sixth Amendment rights. Dkt. No. 1 (“Complaint”). Now before the Court
is Defendants’ motion to dismiss for failure to prosecute. Dkt. No. 54 (“Motion”); see also Dkt.
Nos. 55 (“Balagh Affidavit”), 56 (“Memorandum”). Plaintiff has not responded to the Motion.
For the reasons set forth below the Motion is granted and the Complaint is dismissed.
II.

BACKGROUND
A. Factual Background
The Court assumes familiarity with the facts alleged by Plaintiff in his Complaint and

summarized by the Honorable Andrew T. Baxter, U.S. Magistrate Judge, in his preliminary
review of the Complaint pursuant to 28 U.S.C. § 1915. Compl.; Dkt. No. 9 (“ReportRecommendation) at 3–7. In short, though, Plaintiff alleged that Defendants violated (1) his
Fourth Amendment rights by engaging in an illegal search and seizure on July 21, 2015; (2) his

Fifth Amendment rights by manufacturing false evidence against him; and (3) his Sixth
Amendment rights by maliciously prosecuting him for crimes he did not commit.
B. Procedural Background
On July 12, 2017, the Court, via text order, advised Plaintiff that failure to notify the
Court of a change of address or to otherwise comply with Court orders may result in the
imposition of sanctions, including possible dismissal of his action. Dkt. No. 39. At a July 27,
2017 teleconference, the Court explained the litigation process to the Plaintiff and set a pretrial
schedule. Dkt. No. 43. The cutoff for discovery was set for January 16, 2018. Dkt. No. 44. At an
October 18, 2017 teleconference, at which Plaintiff appeared, defense counsel advised that
discovery demands and a request for Plaintiff to authorize the release of his underlying state court
criminal records had been served on Plaintiff, but that these documents demands had gone
unanswered and would be re-served. Oct. 18, 2017 Docket Entry.
Plaintiff failed to attend the next teleconference on December 13, 2017. Dec. 13, 2017
Docket Entry. In a text order later that day, Plaintiff was again warned that failure to comply with
his discovery obligations or the orders of the Court may result in the imposition of sanctions,
including possible dismissal of his action. Dkt. No 47.
At the January 4, 2018 teleconference, at which Plaintiff appeared, defense counsel
advised the Court that he had re-served the discovery demands on Plaintiff, but had not received
a response. Jan. 4, 2018 Docket Entry. Plaintiff stated that he was having difficulty responding to
discovery demands. Id. In a text order later that day, the Court directed Plaintiff to respond to the
outstanding discovery demands, and again advised him that his failure to comply may result in
dismissal. Dkt. No. 48.
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As of the date of this Decision and Order, Plaintiff has failed to respond to Defendants’
discovery demands or requests. Mot. at 8. Plaintiff has not communicated with the Court since
January 4, 2018. Docket.
III.

LEGAL STANDARD
Federal Rule of Civil Procedure 41(b) authorizes involuntary dismissal “[i]f the plaintiff

fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order.” Fed.
R. Civ. P. 41(b). Such a dismissal is “the harshest of sanctions,” to be used against a pro se
plaintiff’s claim “only when the circumstances are sufficiently extreme.” Baptiste v. Sommers,
768 F.3d 212, 217 (2d Cir. 2014) (per curiam) (citations omitted). A Rule 41(b) dismissal must
also “be proceeded by particular procedural prerequisites,” including notice. Id. (quoting Mitchell
v. Lyons Prof’l Servs., Inc., 708 F.3d 463, 467 (2d Cir. 2013)). “A district court considering a
Rule 41(b) dismissal must weigh five factors,” no one of which is generally dispositive:
(1) [T]he duration of the plaintiff’s failure to comply with the court
order, (2) whether plaintiff was on notice that failure to comply would
result in dismissal, (3) whether the defendants are likely to be
prejudiced by further delay in the proceedings, (4) a balancing of the
court’s interest in managing its docket with the plaintiff’s interest in
receiving a fair chance to be heard, and (5) whether the judge has
adequately considered a sanction less drastic than dismissal.

Id. at 216 (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)).
Local Rule 41.2(a) states that “the plaintiff’s failure to take action for four (4) months
shall be presumptive evidence of lack of prosecution.” Courts have repeatedly dismissed cases
because the plaintiff failed to prosecute for four months. See, e.g. Deptola v. Doe, No. 04-CV1379, 2005 WL 2483341, at *2 (E.D.N.Y. Oct. 7, 2005); Wilson v. Oxford Health Plans (N.Y.),

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Inc., No. 01-CV-3417, 2002 WL 1770813, at *2–4 (S.D.N.Y. July 31, 2002); Antonios A.
Alevizopoulos & Assocs., Inc. v. Comcast Int’l Holdings, Inc., No. 99-CV-9311, 2000 WL
1677984, at *2 (S.D.N.Y. Nov. 8, 2000).
IV.

DISCUSSION
In this case, the Baptiste factors weigh in favor of dismissal. First, by January 4, 2018,

Plaintiff had been served discovery demands and had been directed by the Court to respond to
them. Jan. 4, 2018 Docket Entry. But some nine months later, Plaintiff still has not done so, well
in excess of the four-months that create a presumption of lack of prosecution under the Local
Rules. There is no basis for believing that a renewal of communication is imminent. Second, the
Court has repeatedly informed Plaintiff that his failure to notify the Court of a change of address
or comply with orders of the Court may result in sanctions, including dismissal of his Complaint.
Dkt. No. 39, 47–48. Third, further delay would prejudice Defendants. The discovery period in
this case was scheduled to close by January 16, 2018, Dkt. No. 44, but discovery has been
delayed due to Plaintiff’s absence from the case. Fourth, continued delay cannot vindicate
Plaintiff’s interest in receiving an opportunity to be heard unless he offers some indication that he
intends to take up that opportunity. Yet Plaintiff has made no such indication. Fifth, and finally,
“there is nothing in the record to suggest that a sanction less serious than dismissal will resolve
the plaintiff’s failure to cooperate.” Singleton v. City of New York, No. 14-CV-9355, 2015 WL
9581781, at *2 (S.D.N.Y. Dec. 30, 2015). A financial penalty may be even stronger medicine
than dismissal for a pro se plaintiff proceeding in forma pauperis.
Simply put, “[t]here is no indication that [Plaintiff] wishes to continue with this action.”
Garcia v. Tal on 1st Inc., No. 14-CV-9042, 2016 WL 205442, at *2 (S.D.N.Y. Jan. 15, 2016).
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The “circumstances are sufficiently extreme” to warrant dismissal. Id. (quoting Lucas, 84 F.3d at
535); see also, e.g., Osborn v. Montgomery, No. 15-CV-9730, 2018 WL 2059842, at *1–2
(S.D.N.Y. May 1, 2018) (adopting magistrate judge’s recommendation of dismissal after a pro se
litigant’s failure to update his address and communicate with the court or opposing counsel
caused a five-month delay in proceedings).
Accordingly, this case is dismissed.
The exact timing of the alleged malicious prosecution is unclear from the Complaint, but
for the alleged July 21, 2015 wrongdoing underlying all other claims, the three-year statute of
limitations has passed. N.Y. C.P.L.R. § 214(5). Accordingly, dismissal for all claims except for
the malicious prosecution claim shall be with prejudice. While the Court has discretion to
likewise dismiss the malicious prosecution claim with prejudice, the Court dismisses that claim
without prejudice, in light of Plaintiff’s pro se status.
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendants’ Motion to Dismiss (Dkt. No. 54) is GRANTED, and the

Complaint is DISMISSED with prejudice as to all claims except for the malicious prosecution
claim, which is DISMISSED without prejudice; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.

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IT IS SO ORDERED.

DATED:

October 30, 2018
Albany, New York

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