Powers v. The City of New York et al
Filing
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MEMORANDUM OPINION & ORDER. Accordingly, plaintiff's complaint is DISMISSED for failure to prosecute pursuant to Fed. R. Civ. P. 41(b) without prejudice to re- file on or before March 6, 2015. The Clerk of Court is directed to terminate this action. (Signed by Judge Katherine B. Forrest on 2/4/2015) Copies Mailed By Chambers. (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CURTNEY POWERS,
:
:
Plaintiff,
:
-v:
:
THE CITY OF NEW YORK, et al.,
:
:
Defendants.
:
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KATHERINE B. FORREST, District Judge:
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: February 4, 2015
14 Civ. 842 (KBF)
MEMORANDUM
OPINION & ORDER
On February 6, 2014, pro se plaintiff filed this action under 42 U.S.C. § 1983,
alleging, inter alia, that he was unlawfully stopped, strip searched, and falsely
arrested by defendants. (ECF No. 1.) On June 24, 2014, the Court stayed the case
pending the outcome of a complaint related to the alleged incident in the Civilian
Complaint Review Board (“CCRB”). (ECF No. 15.) The Court lifted the stay on
December 16, 2014 following the City’s representation that the CCRB panel had
made a final determination regarding the charges in this matter and had closed the
case. (ECF No. 23.)
On December 31, 2014, the Court ordered a telephonic status conference for
January 15, 2015. (ECF No. 24.) That Order was mailed to the plaintiff’s address
on file. On January 5, 2015, the Court set forth an Order outlining the schedule to
govern the remainder of the action. (ECF No. 25.) That Order, which was also
mailed to plaintiff, included another reminder about the January 15, 2015
telephonic status conference.
On January 15, 2015, plaintiff failed to call in to the conference. The City
informed the Court that it attempted to reach out to plaintiff on several occasions
over several days, but that the phone number on file was disconnected. That day,
the Court ordered another telephonic status conference for February 2, 2015. (ECF
No. 28.) The Order included a warning that continued failure to appear at the
conferences will result in a dismissal of the case. The Order was mailed to plaintiff.
On February 2, 2015, plaintiff again failed to call in to the conference. The
City informed the Court that it again attempted to reach out to plaintiff, but could
not connect.
Rule 41(b) of the Federal Rules of Civil Procedure “gives the district court
authority to dismiss a plaintiff's case sua sponte for failure to prosecute.” LeSane v.
Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (citing Link v. Wabash
R.R. Co., 370 U.S. 626, 630 (1962)). A district court considering a Rule 41(b)
dismissal with prejudice must weigh five factors:
(1) the 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.
Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (quoting Lucas v. Miles, 84
F.3d 532, 535 (2d Cir. 1996)). Even where a plaintiff fails to comply with a court
order that includes a notice of possible dismissal, “the court must still make a
finding of willfulness, bad faith, or reasonably serious fault” by evaluating those
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criteria. Id. at 217 (quoting Mitchell v. Lyons Prof’l Servs., Inc., 708 F.3d 463, 467
(2d Cir. 2013)). A pro se litigant’s claims should be dismissed for failure to
prosecute “only when the circumstances are sufficiently extreme.” Id. at 9 (quoting
LeSane, 239 F.3d at 209).
Here, these factors weigh in favor of dismissal of plaintiffs complaint: (1)
plaintiff has failed to comply with the Court’s orders for over one month by not
appearing at two separate telephonic status conferences; (2) plaintiff was notified in
a clear, explicit statement on January 15, 2015 that his continued failure to appear
at the conferences would result in dismissal; (3) defendant has already complied
with a CCRB investigation and have called in multiple times to conferences that
had to be cancelled because of plaintiff’s failure to appear, so scheduling further
conferences risks wasting their resources; (4) the Court is currently managing a
heavy caseload consisting of many potentially meritorious lawsuits, whereas
plaintiff has not made any submissions to the Court since the beginning of the
CCRB investigation over seven months ago; and (5) the Court has considered other
sanctions less drastic than dismissal and concluded that dismissal without
prejudice to re-file is the most appropriate sanction in the circumstance of this case.
Accordingly, plaintiff’s complaint is DISMISSED for failure to prosecute
pursuant to Fed. R. Civ. P. 41(b) without prejudice to re-file on or before March 6,
2015.
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The Clerk of Court is directed to terminate this action.
SO ORDERED.
Dated:
New York, New York
February 4, 2015
_________________________________________
KATHERINE B. FORREST
United States District Judge
CC:
Curtney Powers
630 Kingsborough 6 Walk, #5D
Brooklyn, NY 11233
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