Stephanski v. Allen et al

Filing 118

MEMORANDUM-DECISION AND ORDER: It is hereby ORDERED that Defendants' request for dismissal under Federal Rule of Civil Procedure 41(b) is DENIED. It is further ORDERED that juror costs in the amount of $1,707.89 are assessed against Plaint iff for his failure to appear for trial on February 28, 2022. It is further ORDERED that a jury trial will be rescheduled. Plaintiff is hereby WARNED that if he fails to appear on the rescheduled trial date, THIS ACTION WILL BE DISMISSED. Signed by Judge Brenda K. Sannes on 4/13/2022. [Copy served upon plaintiff via regular mail.] (nmk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
PAUL STEPHANSKI,
Plaintiff,
v.

9:18-cv-00076 (BKS/CFH)

RANDY ALLEN, et al.,
Defendants.
________________________________________________
Appearances:
For Plaintiff:
Gabriel M. Nugent
J.J. Pelligra
Barclay Damon LLP
Barclay Damon Tower
125 East Jefferson Street
Syracuse, New York 13202
For Defendants:
Letitia James
Attorney General of the State of New York
Aimee Cowan
Assistant Attorney General
300 South State Street, Suite 300
Syracuse, New York 13202
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Paul Stephanski brought this action against Correction Officers Thomas Stackle

and Brandon Payne and Sergeant Randy Allen, alleging that Defendants violated his Eighth
Amendment rights by subjecting him to excessive force and failing to intervene on September
30, 2015 while Plaintiff was incarcerated at Cape Vincent Correctional Facility. (Dkt. No. 1). On

February 28, 2022, after Plaintiff failed to appear for trial, the Court issued an Order to Show
Cause directing Plaintiff to set forth “why this case should not be dismissed for failure to
prosecute” and “show[] good cause why juror costs should not be assessed against him.” (Dkt.
No. 112, at 4). Plaintiff responded to the Court’s order, (Dkt. No. 114), and Defendants
responded to Plaintiff’s submission requesting that Plaintiff’s complaint be dismissed pursuant to
Federal Rule of Civil Procedure 41(b), (Dkt. No. 117). For the following reasons, the Court
declines to dismiss Plaintiff’s action for failure to prosecute under Rule 41(b) but assesses juror
costs against Plaintiff.
II.

BACKGROUND
Plaintiff commenced this action on January 18, 2018. (Dkt. No. 1). On February 18,

2020, the Court denied Defendants’ motion for summary judgment, which sought dismissal of
the complaint based on Plaintiff’s failure to exhaust administrative remedies. (Dkt. No. 49). On
March 10, 2020, the Court appointed Gabriel M. Nugent and John Joseph Pelligra as pro bono
counsel for purposes of an evidentiary exhaustion hearing and trial. (Dkt. No. 53). The Court
held an evidentiary hearing on the issue of exhaustion and, on December 9, 2020, issued a
decision finding that Plaintiff had exhausted all administrative remedies that were available to
him, and that this case could proceed to trial. (Dkt. No. 75). The Court scheduled trial to begin
on September 13, 2021. (Dkt. No. 77).
On May 13, 2021, after mail to Plaintiff was returned as undeliverable, (Dkt. Nos. 74, 76,
78), and Plaintiff’s counsel was notified and directed to submit an update on “plaintiff’s current
location,” (Text Notice entered May 7, 2021), Plaintiff’s counsel provided the Court with
Plaintiff’s new address. (Dkt. No. 79). On May 14, 2021, the Court acknowledged receipt of
Plaintiff’s new address and issued a Text Order reminding Plaintiff “to keep both the Court and
all counsel advised of his current address.” (Dkt. No. 80). On August 6, 2021, Plaintiff’s counsel
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notified the Court that they had been unable to reach Plaintiff. (Dkt. No. 81). It was determined
that Plaintiff had been arrested on parole and was being housed at Elmira Correctional Facility.
(Id.). The Court therefore issued a Text Order directing Plaintiff to contact his counsel and
warning that “failure to respond to this Court Order may result in dismissal of his case for failure
to prosecute.” (Id.). The Court subsequently rescheduled the trial to February 28, 2022, at
Plaintiff’s request due to his alleged medical condition. (Dkt. Nos. 87, 88).
Plaintiff, who is no longer in custody, did not appear for trial on February 28, 2022.
Although Plaintiff had been in contact with his counsel until 4:00 p.m. on February 27, 2022, he
did not check into the hotel room his counsel had reserved for him for the night of February 27
and did not respond to counsel’s repeated attempts to reach Plaintiff. The Court therefore issued
an order directing Plaintiff to show cause why this case should not be dismissed for failure to
prosecute and why juror costs should not be assessed against him. (Dkt. No. 112).
Plaintiff responded to the Court’s order to show cause on March 10, 2022. (Dkt. No.
114). Plaintiffs’ counsel explained that Plaintiff contacted them at approximately 12:00 p.m. on
February 28. (Id. at 1). Counsel learned that Plaintiff “was stranded at the Port Byron Travel
Plaza, an east-bound access rest area on the New York State Thruway.” (Id.). Counsel traveled to
the Travel Plaza, met Plaintiff there, and arranged for Plaintiff to purchase a return bus ticket to
Buffalo. (Id.).
Plaintiff explained to his counsel that “he had boarded a Greyhound bus in Buffalo bound
for Syracuse late on February 27,” as they had previously discussed. (Id.; see also Dkt. No. 1141 (Plaintiff’s one-way bus ticket from Buffalo to Syracuse)). According to Plaintiff, the bus
stopped at the Travel Plaza during its journey. (Dkt. No. 114, at 2). Plaintiff was not “feeling
well” and “exited the bus to use the restroom.” (Id.). Plaintiff then “took [a] rest in a small

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lounge area with reclining chairs.” (Id.). However, Plaintiff fell asleep, and the bus left the
Travel Plaza without him. (Id.). Counsel subsequently learned that the bus arrived in Syracuse at
2:17 a.m. on February 28. (Id.).
Plaintiff stated that his “travel bag was confiscated by a New York State Trooper after
someone observed and reported it as an unattended bag.” (Id.). Plaintiff’s cell phone was in the
bag, explaining why he did not answer his counsel’s phone calls on the morning of trial. (Id.).
Plaintiff “did not retrieve his bag and phone until just before he called” his pro bono counsel
around noon. (Id.). According to Plaintiff’s counsel, Plaintiff was “quite remorseful for his
failure to appear for trial, completely embarrassed, and disappointed in himself.” (Id.). Plaintiff’s
counsel “attest[s] that [Plaintiff’s] failure to appear is completely at odds with his interest in
seeing this case through.” (Id.).
III.

DISCUSSION
Under Rule 41(b) of the Federal Rules of Civil Procedure, “[i]f the plaintiff fails to

prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order,” a court may
dismiss the action. Fed. R. Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629–30 (1962);
see also N.D.N.Y. L.R. 41.2(a) (“Whenever it appears that the plaintiff has failed to prosecute an
action or proceeding diligently, the assigned judge may order it dismissed.”). Moreover, the
Second Circuit has stated that:
[T]he involuntary dismissal is an important tool for preventing
undue delays and avoiding docket congestion. But it is also one of
the harshest sanctions at a trial court’s disposal, since it usually
extinguishes the plaintiff’s cause of action and denies plaintiff his
day in court. As a result, it is reserved for use only in the most
extreme circumstances.
U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 250–51 (2d Cir. 2004) (internal citation
omitted).

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When determining whether dismissal under Rule 41(b) is appropriate, courts must
consider the following factors:
whether: (1) the plaintiff’s failure to prosecute caused a delay of
significant duration; (2) plaintiff was given notice that further delay
would result in dismissal; (3) defendant was likely to be prejudiced
by further delay; (4) the need to alleviate court calendar congestion
was carefully balanced against plaintiff’s right to an opportunity for
a day in court; and (5) the trial court adequately assessed the efficacy
of lesser sanctions.
Id. at 254. None of these factors is dispositive. Lopez v. Smurfit-Stone Container Enter., Inc., 289
F.R.D. 103, 104–05 (W.D.N.Y. 2013).
Considering these factors, as well as Plaintiff’s explanation for his failure to appear, the
Court concludes that dismissal under Rule 41(b) is not warranted at this time. First, Plaintiff’s
failure to appear at trial on February 28, 2022 will cause a delay, and Plaintiff is responsible for
that delay. 1 However, the Court concludes that a delay of a few months is not an unreasonable
delay in light of the fact that this case has now been pending for more than four years. Cf. Scott
v. Perkins, 150 F. App’x 30, 33 (2d Cir. 2005) (summary order) (noting that the plaintiff “was
responsible for any delay resulting from his failure to appear at trial” and that the “delay of one
month cannot be correctly described as unreasonable, considering that the case had been pending

Defendants argue that Plaintiff “has a lengthy record of delaying, disappearing, [and] failing to apprise the Court of
his current address” in this case. (See Dkt. No. 117, at 4–7). The Court has considered the fact that Plaintiff has, during
the course of this litigation, repeatedly failed to update the Court with his current address. (Dkt. Nos. 23, 80, 81).
Plaintiff is reminded that he must keep the Court and all counsel advised of his current address. Failure to follow this
Order will result in the dismissal of this action for failure to prosecute.
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Defendants also argue that Plaintiff’s request for an adjournment of the September 13, 2021 trial date, which this
Court granted, (see Dkt. Nos. 87, 88), was based on a fabricated injury to his front teeth. (Dkt. No. 117, at 6–7). The
Court notes that Plaintiff’s medical assertions in the August 19, 2021 extension request, (Dkt. No. 87), appear to be at
odds with the medical records provided by Defendants, (Dkt. No. 117-6, at 12–14). Defense counsel notes that there
are “no records that reflect an accident at Elmira Correctional Facility,” and “no medical records that reflect a request
for surgery” or any plan to schedule a consultation or surgery. (Dkt. No. 117, at 6–7). While the Court declines to
determine at this stage whether Plaintiff’s injury and alleged request for “emergency treatment to fix his teeth” were
fabricated, the Court will require that any such future assertion by Plaintiff be documented. In this decision the Court
focuses its analysis on Plaintiff’s failure to appear at trial on February 28, 2022.

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for more than ten years” (citation omitted)). Furthermore, as in Scott, there was “no indication
that [Plaintiff] had abandoned the matter,” as Plaintiff had been in contact with his counsel
through the afternoon of February 27, the day before trial was set to begin. Id. This factor
therefore weighs against dismissal.
The Court finds that the second factor does not weigh either for or against dismissal.
Although Plaintiff was given notice on prior occasions that his failure to update his address with
the Court or comply with specific Court orders may result in dismissal of his complaint, (Dkt.
Nos. 23, 81, 112), Plaintiff received no specific notice that his failure to appear at trial could
result in dismissal. However, Plaintiff is represented by Court-appointed pro bono counsel. See
Scott, 150 F. App’x at 33 (noting that pro bono counsel “should have (and possibly did) inform
[the plaintiff] that failure to appear for trial could result in the dismissal of his case”).
The third factor—likely prejudice to the Defendants as a result of further delay—weighs
slightly in favor of dismissal. Defendants argue that they have “readied themselves for trial—
twice.” (Dkt. No. 117, at 12). Defendants argue that they have arranged for expert witnesses to
testify and made transportation and lodging arrangements “at great expense to the State of New
York,” and that they will be prejudiced by the further “passage of time” and the attendant risk
that memories will fade or witnesses lost altogether. (Id.). Indeed, courts have found prejudice to
defendants in light of the expenditure of resources and extensive passage of time. See, e.g., Doe
v. Winchester Bd. of Educ., No. 10-cv-1179, 2017 WL 214176, at *9–10, 2017 U.S. Dist. LEXIS
6645, at *26–28 (D. Conn. Jan. 18, 2017) (finding this factor weighed in favor of dismissal
where the defendant was prejudiced by the “undue inconvenience, cost and burden of preparing”
for each of five scheduled trial dates “over and above the sheer cost of litigation”); Gaeta v. Inc.
Vill. of Garden City, 644 F. App’x 47, 48 (2d Cir. 2016) (summary order) (affirming dismissal

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under Rule 41(b) where, inter alia, “defendants surely were prejudiced by the extensive” threeyear delay in a twelve-year-old case). However, because Defendants have not made a showing
that any particular evidence is likely to be lost or that “their ability to put on their case [will be]
impaired,” the Court concludes that any prejudice to Defendants due to a delay of the trial does
not outweigh the other factors weighing against dismissal. See Scott, 150 F. App’x at 33–34
(“The prejudice to the defendant was minimal and not sufficient to overcome the relatively short
delay requested.”). Defendants may seek an award of the costs that they have incurred if they
obtain judgment in their favor. Fed. R. Civ. P. 54(d).
Fourth, while this Court maintains a busy calendar, the Court concludes that its need to
alleviate congestion on its court calendar does not outweigh Plaintiff’s right to an opportunity for
a day in court. This is not a case where the plaintiff failed to communicate with the Court or
counsel for extended periods of time; rather, Plaintiff was in contact with his counsel until the
afternoon before trial. Moreover, “[t]here must be compelling evidence of an extreme effect on
court congestion before a litigant’s right to be heard is subrogated to the convenience of the
court.” Lucas v. Miles, 84 F.3d 532, 535–36 (2d Cir. 1996). Resetting Plaintiff’s case for trial
will not have an “extreme effect” on this Court’s calendar, and this factor therefore weighs
against dismissal.
Finally, the Court must consider the efficacy of lesser sanctions. Given the evidence that
Plaintiff was actively on his way to Syracuse for trial and, according to his counsel, has been
active in trial preparations, the Court concludes that a sanction less severe than outright dismissal

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will be effective. Specifically, the Court will impose juror costs on Plaintiff as a sanction for his
failure to appear at trial. 2 Local Rule 47.3 provides:
Whenever any civil action scheduled for jury trial is postponed,
settled or otherwise disposed of in advance of the actual trial, then,
except for good cause shown, all juror costs, including marshal’s
fees, mileage and per diem, shall be assessed against the parties
and/or their attorneys as the Court directs, unless the parties or their
attorneys notify the Court and the Clerk’s office at least one full
business day prior to the day on which the action is scheduled for
trial, so that the Clerk has time to advise the jurors that it shall not
be necessary for them to attend.
N.D.N.Y. L.R. 47.3. In the Trial Order issued on March 11, 2022, the Court also advised the
parties “that should a case be removed from the trial ready list because of settlement or some
other factor, on or after Wednesday, September 8, 2021 . . . the court may impose sanctions
pursuant to L.R. 47.3.” (Dkt. No. 77, at 2). Twenty-four potential jurors reported for jury duty on
February 28, 2022, only to be sent home. Accordingly, the Court assesses the costs associated
with those jurors against Plaintiff in the amount of $1,707.89. 3
In sum, the Court finds that Plaintiff and his counsel have provided an explanation for his
failure to appear at trial on February 28, 2022 and that dismissal is not warranted under these
circumstances. This is not a case where the plaintiff failed to provide any explanation whatsoever
for his failure to appear at a duly scheduled proceeding or where the plaintiff simply refuses to
proceed at trial. See, e.g., Triplett v. Asch, No. 17-cv-656, 2021 WL 2227748, at *3, 2021 U.S.
Dist. LEXIS 103185, at *8–9 (N.D.N.Y. June 2, 2021) (dismissing action where the plaintiff
“refused to be taken to Court” on the morning of trial and “refus[ed] to come out of his cell or

Although the Court directed Plaintiff to show good cause why juror costs should not be assessed against him, Plaintiff
did not address the issue of juror costs in his response to the Court’s order. (See Dkt. No. 114).

2

These costs include $1,200.00 for the jurors’ attendance and service and an additional $507.89 in mileage and parking
fees.

3

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otherwise participate in a conference with the Court”), appeal docketed, No. 21-1519 (2d Cir.
June 22, 2021); see generally Lewis v. Rawson, 564 F.3d 569 (2d Cir. 2009) (affirming dismissal
of action where the plaintiff refused to testify at and proceed with trial after the district court
denied his request for an adjournment). While Defendants argue that Plaintiff’s explanation for
his failure to appear is not credible because he offered no sworn declaration, the Court has before
it Plaintiff’s used one-way bus ticket from Buffalo to Syracuse, and counsel’s representation that
counsel found Plaintiff on the afternoon of trial “stranded” at the Port Byron Travel Plaza, en
route to Syracuse. (Dkt. No. 114, at 1). The Court has no reason to doubt counsel’s assertions
that Plaintiff was remorseful, embarrassed, disappointed, and “generally inconsolable” upon
missing trial. (Id. at 2). Mindful that dismissal is “one of the harshest sanctions” available which
is reserved “for use only in the most extreme circumstances,” Drake, 375 F.3d at 250–51, the
Court declines to dismiss Plaintiff’s action here. Plaintiff is, however, warned that his failure to
appear for the rescheduled trial will result in dismissal of his action.
IV.

CONCLUSION
For these reasons, it is hereby
ORDERED that Defendants’ request for dismissal under Federal Rule of Civil Procedure

41(b) is DENIED; and it is further
ORDERED that juror costs in the amount of $1,707.89 are assessed against Plaintiff for
his failure to appear for trial on February 28, 2022; and it is further
ORDERED that a jury trial will be rescheduled.
Plaintiff is hereby WARNED that if he fails to appear on the rescheduled trial date,
THIS ACTION WILL BE DISMISSED.
IT IS SO ORDERED.
Dated: _________________
April 13, 2022
Syracuse, New York
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