Hardimon v. Westechester County et al
MEMORANDUM AND ORDER granting 25 Motion to Dismiss for Lack of Prosecution. For the reasons stated herein, the motion to dismiss for failure to prosecute (Docket No. 25) is granted. The Clerk shall enter judgment for the defendant. Counsel for the defendant is directed to supply plaintiff with copies of all unreported decisions cited herein. 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. See Coppedge v. UnitedStates, 369 U.S. 438, 444-45 (1962). SO ORDERED. (Signed by Judge P. Kevin Castel on 5/16/2014) Copies Mailed to Plaintiff By Chambers. (ama)
DOC#: _ _ _ _ __
UNITED STATES DISTRlCT COURT
SOUTHERN DISTRlCT OF NEW YORK
DATE FILED: 5-/~ -If!
13 Civ. 1249 (PKC) (MHD)
CORRECTIONAL OFFICER WHITE 1329,
AND CORRECTIONAL SERGEANT
HODGE, INDIVIDUALLY AND IN THEIR
CASTEL, District Judge:
Plaintiff, Kevin Hardimon, who is proceeding pro se, has failed to appear at a
court-ordered initial pretrial conference. Defendant has moved to dismiss the complaint for
failure to prosecute, pursuant to Rule 41(b), Fed. R. Civ. P., and plaintiff has not responded to
the motion. For the reasons stated below, the motion is granted.
Hardimon filed a complaint in this action on February 22, 2013. On April 4,
2013, he submitted a change of address to the court. (Docket No.9.) On April 18, 2013, he sent
a letter to the Court seeking to subpoena evidence ii-om Westchester County Jail. (Docket No.
10.) The defendants were served with process on May 24, 2013. (Docket Nos. 11-13.) On
November 6, 2013, this Court dismissed all claims against defendants Westchester County and
Correctional Officer Hodge. (Docket No. 21.) On December 6, 2013, Magistrate Judge
Dolinger ordered plaintiff, Kevin Hardimon, to attend a pretrial conference on January 2,2014.
Mr. Hardimon failed to appear. On January 2, 2014, Magistrate Judge Dolinger set a schedule
for the remaining defendant's motion to dismiss for failure to prosecute. Mr. Hardimon was
ordered to submit an opposition the motion by January 30, 2014. Mr. Hardimon did not respond.
On April 11, 2014, this Court entered an order, which included, in bold and capitalized typeface:
MR. HARDIMON, YOU ARE ADVISED THAT YOUR
FAILURE TO OPPOSE THE DEFENDANT'S MOTION TO
DISMISS FOR FAILURE TO PROSECUTE OR
OTHERWISE RESPOND TO THIS ORDER IN WRITING
WITHIN THIRTY (30) DAYS OF THE DATE OF THIS
ORDER WILL BE DEEMED A FAILURE TO PROSECUTE
THIS ACTION AND WILL RESULT IN A DISMISSAL OF
YOUR CASE WITH PREJ1JDlCE. SEE RULE 41(B), FED.
R. CIV. P. A DISMISSAL WITH PREJ1JDlCE MEANS
THAT YOUR LAWSUIT WILL BE OVER AND YOU, MR.
HARDIMON, WILL BE BARRED FROM BRINGING YOUR
CLAIM IN ANY COURT.
(Docket No. 28 at 1-2.) No mail submitted to Mr. Hardimon has been returned as
undeliverable to the Court or to Magistrate Judge Dolinger.
"If the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil
Procedure] or a court order, a defendant may move to dismiss the action or any claim against it."
Fed. R. Civ. P. 41(b). "[D]ismissal for lack of prosecution is a '''harsh remedy' that should 'be
utilized only in extreme situations. "'. Lewis v. Rawson, 564 FJd 569, 575-76 (2d Cir. 2009)
(quoting Minette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)). This is especially hue
when the plaintiff is a pro se litigant. LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d
Cir. 2001) (noting that "pro se plaintiffs should be granted special leniency regarding procedural
matters" and "deference is due to a dish'ict COUlt'S decision to dismiss a pro se litigant's
complaint only when circumstances are sufficiently extreme.") (citation and quotations omitted).
The Second Circuit has "fashioned guiding rules that limit a trial
discretion" when detennining whether to dismiss for failure to prosecute. United States ex reI.
Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). Under these rules, district courts
must consider five factors in detennining whether dismissal pursuant to Rule 41 (b) is proper:
"[ 1] the duration of the plaintiff s failures,  whether plaintiff had received notice that further
delays would result in dismissal,  whether the defendant is likely to be prejudiced by further
delay,  whether the district judge has take[n] care to strik[e] the balance between alleviating
court calendar congestion and protecting a party's right to due process and a fair chance to be
heard ... and  whether the judge has adequately assessed the efficacy of lesser sanctions."
LeSane. 239 F.3d at 209 (quoting Alvarez v. Simmons Mkt. Research Bureau, Inc., 839 F.2d
930,932 (2d Cir. 1988)). "[N]one of the five factors is separately dispositive." Id. at 210 (citing
Nita v. Connecticut Dep't ofEnvtl. Prot., 16 F.3d 482, 485 (2d Cir. 1994).
Mr. Hardimon did not appear at a scheduled conference on January 2,2014. His
inaction has delayed discovery. This factor weighs in favor of dismissal.
Mr. Hardimon was provided with specific notice that further delay would result in
dismissal. (Docket No. 28.) See Lucas v. Miles, 84 F.3d 532,535 (2d Cir. 1996) ("A warning to
a pro se litigant must be ... specific before it will constitute a warning for the purpose of this
Prejudice to Defendant
There is no evidence in the record that plaintiff s delay already has caused
prejudice to COlTectional Officer White. However, these section 1983 claims are brought against
him in his individual capacity. He stands accused of serious constitutional violations. The
pending litigation is a matter which properly may be inquired into on a mortgage or car loan
application or future employment application. The defendant and the public are entitled to have
the cloud over the defendant's name resolved one way or another. Though prejudice may not yet
have occurred, it is a foreseeable consequence of plaintiff's inaction. This factor thus weighs
slightly in favor of dismissal.
Court Calendar Congestion
Each plaintiff has a right to his day in court. This right is qualified by the
obligation to comply with lawful court orders. Noncompliance undermines the ability of the
Court to manage its docket and dispense justice to all litigants in an expeditious manner. The
COUlt notes that the presence of this case on its docket has not materially enhanced "court
calendar congestion." Alvarez, 839 F.2d at 932. Thus, the COUlt finds that this factor weighs
slightly against dismissal.
Efficacy of Lesser Sanctions
The Court has considered the efficacy of sanctions less severe than dismissal and
has concluded that they are inadequate. In light of the express warning of dismissal, there is no
reason to believe that a lesser sanction would be effective. See Ruzsa v. Rubenstein & Sendy
Attys at Law, 520 FJd 176, 178 (2d Cir. 2010) ("in light of Ruzsa's failure to respond to the
notice threatening dismissal, it is equally unclear that a 'lesser sanction' would have proved
effective in this case.").
The COUlt affords Hardimon special consideration as a pro se litigant. But a
plaintiff s pro se status should not explain or excuse disregard for or abandonment of his own
lawsuit. In some cases, it may be appropriate for the COUlt to overlook a pro se litigant's failure
to substantially comply with COUlt orders or the Federal Rules of Civil Procedure. Here,
Hardimon's noncompliance strongly suggests abandonment of the action.
For the reasons stated herein, the motion to dismiss for failure to prosecute
(Docket No. 25) is granted. The Clerk shall enter judgment for the defendant. Counsel for the
defendant is directed to supply plaintiff with copies of all unrepOlted decisions cited herein. The
COUlt cettifies 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. See Coppedge v. United
States, 369 U.S. 438, 444-45 (1962).
P. KeVlll Castel
United States District Judge
Dated: New York, New York
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