Finch v. Moore et al

Filing 23

MEMORANDUM-DECISION AND ORDER granting #17 Motion to Dismiss for Lack of Prosecution: The Court hereby ORDERS that Defendants' motion to dismiss (Dkt. No. 17) is GRANTED; and the Court further ORDERS that Plaintiff's complaint (Dkt. No. 1) is DISMISSED; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 4/6/17. (Copy served via regular )(ban) Modified on 4/6/2017 (ban).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JOHN P. FINCH, SR.,
Plaintiff,
vs.

8:16-cv-00005
(MAD/DJS)

DONALD MOORE, N.Y.S. Trooper, State
Trooper Barracks in Lee, New York;
JOSEPH CALLEJA, N.Y.S. Trooper, State Trooper
Barracks in Lee, New York,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

JOHN P. FINCH, SR.
09-B-1370
Clinton Correctional Facility
P.O. Box 2000
Dannemora, New York 12929
Plaintiff, pro se
OFFICE OF THE NEW YORK STATE
ATTORNEY GENERAL
Albany Office
The Capitol
Albany, New York 12224
Attorneys for Defendants

KEITH J. STARLIN, AAG.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On January 4, 2016, pro se Plaintiff John P. Finch, Sr. ("Plaintiff") commenced the instant
action against Defendants Donald Moore and Joseph Calleja (collectively, "Defendants")
pursuant to 42 U.S.C. § 1983. See Dkt. No. 1. Since filing the complaint, Plaintiff has taken no
further action to prosecute this case. Plaintiff has not been receiving any documents mailed to

him at his listed address at Clinton Correctional Facility, nor has Plaintiff notified the Court of
any change of address. Currently before the Court is Defendants' motion to dismiss for failure to
prosecute pursuant to Fed. R. Civ. P. 41(b). See Dkt. No. 17.
II. BACKGROUND
Plaintiff filed the complaint on January 4, 2016. See Dkt. No. 1. On March 15, 2016,
Magistrate Judge Daniel J. Stewart granted Plaintiff's application to proceed In Forma Pauperis
and ordered that Defendants respond to Plaintiff's complaint after receiving service of process.
See Dkt. No. 4. On that same day, Judge Stewart issued a Filing Order scheduling an initial
conference and ordering that a Civil Case Management Plan be completed and filed by June 7,
2016. See Dkt. No. 5. The Court attempted to mail copies of those orders to Plaintiff's listed
address at Clinton Correctional Facility, but the mail was returned as undeliverable on March 21,
2016. See Dkt. No. 7.
On April 22, 2016, Defendants filed an answer and attempted to serve the answer upon
Plaintiff by regular mail at Plaintiff's listed address. See Dkt. No. 13; Dkt. No. 17-4. On May 2,
2016, the answer was returned to Defendants' counsel with a sticker affixed thereto that read
"Return to Sender – Attempted - Not Known – Unable to Forward." Dkt. No. 17-1 ¶ 12; Dkt. No.
17-5. On May 9, 2016, Judge Stewart issued a Text Order and a Pretrial Scheduling Order. See
Dkt. Nos. 14, 15. Again, the Court attempted to mail copies of those orders to Plaintiff, but the
mail was returned as undeliverable on May 20, 2016. See Dkt. No. 16.
On October 5, 2016, Defendants filed a motion to dismiss for failure to prosecute. See
Dkt. No. 17. Defendants attempted to serve the motion and related papers on Plaintiff by mail on
that same day, but those papers were returned to Defendants on October 11, 2016 with a "Return
to Sender" stamp on the envelope. See Dkt. No. 18. On October 14, 2016, the Court issued a
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Text Order notifying Plaintiff that the Court would decide Defendants' unopposed motion to
dismiss if Plaintiff failed to provide the Court with his current address. See Dkt. No. 19. The
Court attempted to mail a copy of this Text Order to Plaintiff, but the mail was returned as
undeliverable on October 27, 2016. See Dkt. No. 21.
In a declaration submitted by Defendants' attorney, Keith J. Starlin, Mr. Starlin claims
that, according to the New York State Department of Corrections and Community Supervision
("DOCCS") inmate information database, Plaintiff was released from DOCCS's custody on
February 25, 2016. See Dkt. No. 17-1 ¶¶ 16-17. Since Plaintiff's release, Plaintiff has failed to
notify the Court or Defendants of his current address or any contact information indicating how
he can be reached.
III. DISCUSSION
Fed. R. Civ. P. 41(b) provides, in relevant part, that "[i]f the plaintiff fails to prosecute or
to comply with these rules or a court order, a defendant may move to dismiss the action or any
claim against it." Fed. R. Civ. P. 41(b). Courts balance the following factors when determining
whether dismissal is appropriate under Rule 41(b):
(1) the duration of the plaintiff's failure to comply with the court
order; (2) whether the 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.
U.S. ex rel Roundtree v. Health & Hosps. Police Dep't of N.Y., No. 06 Civ. 212, 2007 WL
1428428, *1 (S.D.N.Y. May 14, 2007) (footnote omitted). "A district court need not exhaustively
discuss the above factors on the record in order to be affirmed on appeal. However, 'notions of

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simple fairness suggest that a pro se litigant should receive an explanation before his or her suit is
thrown out of court.'" Id. (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)).
In the present matter, Plaintiff has failed to notify the Court of his change in address.
Plaintiff filed the complaint well over a year ago, and since then, Plaintiff has not responded or
participated in any activity related to this litigation. In Judge Stewart's Order dated March 15,
2016, Judge Stewart warned Plaintiff that the failure to notify the Clerk's Office and all parties of
any change in his address "will result in the dismissal of this action." Dkt. No. 4 at 4 (emphasis
omitted). Likewise, in a Text Order dated October 14, 2016, the Court warned Plaintiff that it
would decide Defendants' unopposed motion to dismiss if Plaintiff did not provide the Court with
his current address. See Dkt. No. 19.
Courts have dismissed cases for failure to prosecute in similar situations as the one
presented here. See, e.g., Roundtree, 2007 WL 1428428, at *2 ("[A] lawsuit cannot continue
where the plaintiff fails to disclose his new address to his adversary and to the Court. This is
especially true where, as here, plaintiff has had no contact with the Court or his adversary for a
significant period of time. Accordingly, for the foregoing reasons, this case is dismissed . . . .");
Torres v. Goord, No. 9:06-CV-750, 2007 WL 1299183, *3 (N.D.N.Y. May 1, 2007) ("Without an
updated address from plaintiff there is no way to contact him or to consider any sanctions other
than dismissal. It appears that plaintiff has simply abandoned his action. Although plaintiff
certainly has a right to have his day in court, he does not appear to be interested in that right based
on his failure to notify the court of his address."). Here, Plaintiff has failed to take any action
with respect to this case for a considerable length of time, and Defendants continue to be
prejudiced by Plaintiff's failure to respond in any way to the Court's directives. Defendants have
obviously not been able to engage in any kind of discovery or even attend an initial conference.
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After Plaintiff was released from custody, Plaintiff seemingly has had no interest in prosecuting
this case.
The mere fact that Plaintiff did not receive a copy of the various orders from the Court
does not save his case from dismissal. See Roundtree, 2007 WL 1428428, at *2 (citing Mathews
v. U.S. Shoe Corp., 176 F.R.D. 442, 443 (W.D.N.Y. 1997)). Likewise, Plaintiff's status as a pro
se litigant does not save his case from dismissal. See id. (citing McDonald v. Head Criminal
Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988)). As courts have stated, "[t]he
demand that plaintiffs provide contact information is no esoteric rule of civil procedure, but rather
the obvious minimal requirement for pursuing a lawsuit." Torres, 2007 WL 1299183, at *2
(quotation and emphasis omitted). Plaintiff has failed to meet this obvious minimal requirement.
Since the Court has no way to contact Plaintiff and since Plaintiff appears to have
abandoned this action entirely, Defendants' motion to dismiss is granted, and Plaintiff's complaint
is dismissed.
IV. CONCLUSION

After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants' motion to dismiss (Dkt. No. 17) is GRANTED; and the Court
further
ORDERS that Plaintiff's complaint (Dkt. No. 1) is DISMISSED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further

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ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.

Dated: April 6, 2017
Albany, New York

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