Thornton v. Moroney et al

Filing 12

OPINION AND ORDER. For the reasons set forth above, Plaintiff's claims are DISMISSED without prejudice. The Clerk of the Court is respectfully directed to close this case. (Signed by Judge Edgardo Ramos on 6/20/2014) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JAMES C. THORNTON,
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Plaintiff,
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- against :
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THOMAS MORONEY and WARDEN AGRO,
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Defendants.
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OPINION AND ORDER
13 Civ. 8912 (ER)

RAMOS, D.J.:
While incarcerated at the Anna M. Kross Center (the “Kross Center”), James Thornton
(“Plaintiff”), appearing pro se filed this action pursuant to 42 U.S.C. § 1983 against Thomas
Moroney, a New York Police Department Officer; William Mason, an Assistant District
Attorney in the New York County District Attorney’s Office; and Rose Agro, Warden of the
Kross Center. Compl., Doc. 2. Plaintiff claims that his August 2013 arrest on drug charges was
unconstitutional, and that he was refused medical treatment and a bed upon intake at Rikers
Island. Id.
For the reasons set forth below, the Court hereby DISMISSES Plaintiff’s claims for
failure to prosecute, without prejudice.
I. Background
Plaintiff initiated the instant case on December 11, 2013. Doc. 2. By order dated
January 13, 2014, the Court dismissed Plaintiff’s claims against Assistant District Attorney
Mason and requested that Defendant Agro waive service of summons. Doc. 5.
On January 14, 2014, the Court mailed an information package to Plaintiff at his last
known address: Anna M. Kross Center, 18-18 Hazen Street, East Elmhurst, NY 11370. See

Docket, 13 Civ. 8912 (January 14, 2014 Entry). Thereafter, the Court received notice that the
mailing to Plaintiff was returned for the reason “Plaintiff is discharged. No known forwarding
address.” See Docket, 13 Civ. 8912 (January 30, 2014 Entry).
On April 8, 2014, Defendant Agro filed her Answer. Doc. 8. Thereafter, the Court set a
case management conference for May 9, 2014. Doc. 9 (“Notice of Initial Court Conference”).
On April 9, 2014, the Court mailed a copy of the Notice of Initial Court Conference to Plaintiff
at the Kross Center Address. Thereafter, the Clerk of the Court received notice that the mailing
to Plaintiff was returned for the reason “not in system.”
Plaintiff was not present for the conference held on May 9, 2014. Following the
conference, the Court entered an order to show cause why this action should not be dismissed
without prejudice for want of prosecution. Doc. 10 (“Order to Show Cause for Dismissal”).
The Court held a show cause hearing on June 17, 2014. While counsel for Defendant
Agro was present by telephone, Plaintiff again failed to appear. To date, the Court has not
received any correspondence or notice of change of address from Plaintiff indicating that he is no
longer at the Kross Center Address.
II. Dismissal Without Prejudice Pursuant to Rule 41(b)
Rule 41(b) of the Federal Rules of Civil Procedure states that a defendant may move to
dismiss an action or any claim against it “[i]f the plaintiff fails to prosecute or to comply with
these rules or a court order.” Fed. R. Civ. P. 41(b). Alternatively, a district court may, sua
sponte, dismiss an action for lack of prosecution pursuant to Rule 41(b). Minnette v. Time
Warner, 997 F.2d 1023, 1027 (2d Cir. 1993). Unless the dismissal order states otherwise, a
dismissal under Rule 41(b) operates as an adjudication on the merits. Fed. R. Civ. P. 41(b).
District courts have discretion to effect dismissal pursuant to Rule 41(b). See Hibbert v. Apfel,

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No. 99 Civ. 4246(SAS), 2000 WL 977683, at *1 (S.D.N.Y. July 17, 2000) (citing Nita v.
Connecticut Dep’t of Envtl. Protection, 16 F.3d 482, 485 (2d Cir. 1994); Alvarez v. Simmons
Mkt. Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir. 1988)). The Second Circuit has
cautioned, however, that the discretion to dismiss a case under Rule 41(b) should be exercised
sparingly and only when the district judge is “sure of the impotence of lesser sanctions.” Chira
v. Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir. 1980); accord Lewis v. Rawson, 564 F.3d
569, 576 (2d Cir. 2009).
To determine whether to dismiss a case under Rule 41(b) for failure to prosecute, district
courts employ a balancing test that considers the following five factors: (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 due process and a fair chance to be heard; and (5) whether the
district judge had adequately assessed the efficacy of lesser sanctions. U.S. ex rel. Drake v.
Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004); Shannon v. General Elec. Co., 186 F.3d
186, 193-94 (2d Cir. 1999); Jackson v. City of New York, 22 F.3d 71, 74 (2d Cir. 1994).
The Court finds that dismissal of Plaintiff’s claims without prejudice under Rule 41(b) is
warranted. First, Plaintiff has failed to take any action with respect to his claims during the time
period from at least December 11, 2013 to June 20, 2014. He has apparently been released from
custody at the Kross Center yet has not notified the Court of his current address. Additionally, as
of the date of this opinion, he still has not complied with the May 9, 2014 Order directing him to
show cause why this action should not be dismissed without prejudice for want of prosecution.
Cf. Hibbert, 2000 WL 977683, at *3 (dismissing claims under Rule 41(b) where over six months

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elapsed after plaintiff’s receipt of a proposal to remand); Chira, 634 F.2d at 666-67 (failure to
take any action during six month period justified dismissal under Rule 41(b)).
Second, the Court’s Order to Show Cause for Dismissal clearly put Plaintiff on notice
that failure to respond would result in dismissal of his claims. Moreover, regardless of whether
Plaintiff actually received notice that delay could result in dismissal, it remained his duty to
diligently pursue his case and to inform this Court’s Pro Se Office of any change of address.
Hibbert, 2000 WL 977683, at *2 (citing Smith v. Human Res. Admin. of New York City, No. 91
Civ. 2295, 2000 WL 307367, at *2 (S.D.N.Y. Mar. 24, 2000)); Mathews v. U.S. Shoe Corp., 176
F.R.D. 442, 445 (W.D.N.Y. 1997) (granting Rule 41(b) motion despite plaintiff’s non-receipt of
the court’s order to comply with discovery requests or be subject to dismissal for failure to
prosecute).
Third, prejudice to Defendant can be fairly presumed where, as here, there is a delay of
more than six months and Plaintiff neither replied to the Court nor defense counsel’s attempts to
reach him during that timeframe. Chira, 634 F.2d at 666-68 (six-month delay caused prejudice);
accord Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42-43 (2d Cir. 1982) (noting that
delays supporting dismissals have ranged from a matter of months to a period of years); but see
United States ex rel. Drake, 375 F.3d at 255 (presumption of prejudice is rebuttable (citing
LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 210 (2d Cir. 2001)). Here, dismissal under
Rule 41(b) is appropriate because Plaintiff has failed to appear for conferences, failed to keep the
Court apprised of his address, and failed to respond to the Order to Show Cause for Dismissal.
Ashley v. City of New York, No. 02 Civ. 3085 (LAP) (RLE), 2003 WL 1624215, at *2 (S.D.N.Y.
Mar. 25, 2003) (dismissing without prejudice pro se plaintiff’s claims under Rule 41(b) where
over a year elapsed since he had filed his complaint and service had not been effectuated).

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Fourth, dismissal of Plaintiff’s claims without prejudice does not violate his due process
rights. While Plaintiff has had the opportunity to be heard, he has failed to pursue his claims for
a period of more than six months or to notify the Court of a change in address. “It is not the
function of this Court to chase dilatory plaintiffs while other litigants in this district seek access
to the courts.” Hibbert, 2000 WL 977683, at *3. However, because Plaintiff’s delay has not
impacted the trial calendar, the Court finds that this factor also supports dismissal without
prejudice, as opposed to adjudication on the merits. See, e.g., Thrall v. Cent. New York Reg’l
Transp. Auth., 399 F. App’x 663, 666 (2d Cir. 2010) (dismissal without prejudice would have
served the district court’s need to clear its calendar without unduly penalizing a pro se litigant for
failing to comply with a scheduling order).
Fifth, due to Plaintiff’s failure to maintain contact with the Court, dismissal, rather than a
further extension of time, is appropriate. “[A]ll litigants, including pro se litigants, have an
obligation to comply with court orders. When they flout that obligation they, like all litigants,
must suffer the consequences of their actions.” Baba v. Japan Travel Bureau Int’l, Inc., 165
F.R.D. 398, 402 (S.D.N.Y. 1996), aff’d, 111 F.3d 2 (2d Cir. 1997) (quoting McDonald v. Head
Crim. Court Supervisor Off’cr, 850 F.2d 121, 123 (2d Cir. 1988) (internal quotation marks
omitted)); see also Barclay v. Doe, 207 F. App’x 102, 104 (2d Cir. 2006) (upholding dismissal of
with prejudice under Rule 41(b) where pro se plaintiff defied discovery order). Policy concerns
also militate in favor of dismissal. As the Second Circuit has recognized, “[d]elays have
dangerous ends,” and “exhortations of diligence are impotent” unless district judges
appropriately wield the power of dismissal. Chira, 634 F.2d at 668. However, because the
Court finds that lesser sanctions than dismissal with prejudice are potentially viable, and due to
his pro se status, Plaintiff’s claims will be dismissed without prejudice. Lyell Theatre Corp., 682

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