Jankowski v. Eric M. Taylor Center et al

Filing 16

MEMORANDUM AND ORDER. For the reasons provided above, this case shall be dismissed without prejudice for failure to prosecute. This resolves Dkt. No. 11 and the Clerk of Court is directed to close this case. The Court further finds 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 for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Granting 11 Motion to Dismiss. (Signed by Judge Alison J. Nathan on 6/25/2015) (rjm)

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#: ___________

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DATE FILED: JUN

2 5 2015

Martin Jankowski,
Plaintiff,
14-CV-7434 (AJN)

-vEric M. Taylor Center, et al.,

MEMORANDUM
&ORDER

Defendants.

ALISON J. NATHAN, District Judge:
On February 19, 2015, Defendant C.O. Frizzotti filed a motion to dismiss. Dkt. No. 11.
Although Plaintiff Martin Jankowski was granted an extended amount of time to oppose that
motion to dismiss, he failed to file an opposition, despite an express warning that such failure to
file an opposition or any communication with the Court may result in dismissal of this case.
Dkt. Nos. 14-15. Because Plaintiff still has not indicated a willingness to participate in this
action, the Court hereby dismisses the action for failure to prosecute.
I.

BACKGROUND
On September 12, 2014, Plaintiff filed a complaint against the Eric M. Taylor Center on

Rikers Island, C.O. Frizzotti, and Corizon asserting claims for damages under 42 U.S.C. § 1983.
Dkt. No. 1. In his Complaint, Plaintiff expressly asked the Court to "please send all legal mail
to: 15 Allison Place, Staten Island, NY 10306." Dkt. No. 1 at 3.
Following a review of Plaintiff's Complaint, the Court dismissed Plaintiff's claims
against the Eric M. Taylor Center because it is not a "person" for purposes of§ 1983. Dkt. No. 6
at 2 (citing Reynolds v. Darrah, No. 11-CV-5885, 2011 U.S. Dist. LEXIS 1136211, at *2-3
(S.D.N.Y. Sept. 30, 2011)). But the Court issued an Order of Service as to the remaining
Defendants. Dkt. No. 6.

In that October 21, 2014 Order of Service, the Court directed the Clerk of Court to send
Plaintiff one U.S. Marshals Service Process Receipt and Return form ("USM-285 form") for
Defendant Corizon. Dkt. No. 6 at 2. The Court further informed Plaintiff that he was to
complete a USM-285 form and return that form to the Court or request a summons for Defendant
Corizon within 30 days of the Court's October 21, 2014 Order. Dkt. No. 6 at 2. The Order of
Service warned Plaintiff that "[i]f within thirty days, Plaintiff has not returned the USM-285
form or requested a summons, under Rule 41 (b) of the Federal Rules of Civil Procedure, the
Court may dismiss Plaintiff's claims against Defendant Corizon for failure to prosecute." Dkt.
No. 6 at 2. The following day, the Clerk of Court sent the USM-285 form to Plaintiff at the
address provided in his Complaint. See minute entry for October 22, 2014. The Court also
mailed a copy of the Order of Service to Plaintiff at the address provided in his Complaint. See
minute entry for October 23, 2014. Plaintiff never returned the USM-285 or requested a
summons with respect to Corizon.
The Court also directed the Clerk of Court to notify the New York City Department of
Correction and the New York City Law Department of the October 21, 2014 Order, and it
requested that Defendant Frizzotti waive service of summons. Dkt. No. 6 at 3. On November
20, 2014, Defendant Frizzotti filed a waiver of service of summons. Dkt. No. 7.
On February 19, 2015, Defendant Frizzotti filed a motion to dismiss. Dkt. No. 11. On
February 23, 2015, the Court issued an Order informing Plaintiff that Defendant Frizzotti had
moved to dismiss his Complaint. Dkt. No. 14. The Court informed Plaintiff that, under the
Federal Rules of Civil Procedure, he normally would have 21 days after the service of the motion
to amend his Complaint once as a matter of course. Dkt. No. 14 at 1. Since Plaintiff was
proceeding prose, however, the Court granted him additional time to amend his Complaint,
giving him until March 19, 2015. Dkt. No. 14 at 1. The Court further informed Plaintiff that if
he did not file an amended complaint, he was to serve his opposition to Defendant's motion to
dismiss by March 19, 2015. Dkt. No. 14 at 1.

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March 19, 2015 came and went with no communication from Plaintiff. On April 2, 2015,
the Court issued an Order summarizing its February 23, 2015 Order and informing Plaintiff that
he had until May 1, 2015 to submit a letter to the Court indicating if he wishes to file an
opposition to the motion to dismiss or does not wish to file an opposition to the motion. Dkt. No.
15. The Court fmiher informed Plaintiff that if he "indicates in his letter that he will not file an
opposition brief, the Court will deem the motion fully submitted and will consider its merits. If
[he] indicates in his letter that he intends to file an opposition brief and is seeking an extension of
the deadline to file an opposition, [he] must demonstrate in his letter that his pursuit of the action
has been diligent and that there is good reason for extending the deadline." Dkt. No. 15 at 1.
Finally, the Court expressly informed Plaintiff that "[f]ailure to submit any letter to the Court by
May 1, 2015 shall result in DISMISSAL of the action for failure to prosecute." Dkt. No. 15 at 1
(citing Fed. R. Civ. P. 4 l(b); Ruzsa v. Rubenstein & Sendy Attys. at Law, 520 F.3d 176, 178 (2d
Cir. 2008) ("[I]n light of [plaintiff's] failure to respond to the notice threatening dismissal, it is
equally unclear that a 'lesser sanction' would have proved effective in this case.")).
As of June 23, 2015, the Court has not received any communication from Plaintiff.
Indeed, since filing his Complaint, request to proceed informa pauperis, and prison
authorization form on September 12, 2014, Plaintiff has not responded to any communications
from the Court and has not otherwise communicated with the Court. Moreover, although the
mail sent to Plaintiff at the Eric M. Taylor Center was returned as undeliverable, no mail that
was sent to the address provided in Plaintiff's Complaint has been returned. (All Court
communications have been sent to the address provided in Plaintiff's Complaint since October
22, 2014.)

II.

LEGAL STANDARD
"Rule 41 (b) of the Federal Rules of Civil Procedure authorize the district court to dismiss

an action '[i]f the plaintiff fails to prosecute or to comply with [the] rules or a court order."'

Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014). In addition, "[i]f a defendant is not
served within 120 days after the complaint is filed, the court-on motion or on its own after
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notice the plaintiff-must dismiss the action without prejudice against that defendant or order
that service made within a specified time." Fed. R. Civ. P. 4(m). "A district court considering a
Rule 41 (b) dismissal must weigh five factors: '(1) the duration of the plaintiffs 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

pr~judiced

by further delay in the

proceedings, (4) a balancing of the court's interest in managing its docket with the plaintiffs
interest in receiving a fair chance to be heard, and (5) whether the judge has adequately
considered a sanction less drastic than dismissal."' Baptiste, 768 F.3d at 216 (quoting Lucas v.

Miles, 84 F.3d 532, 535 (2d Cir. 1996)).
III.

DISCUSSION
Applying the five factors set forth in Baptiste, the Court concludes that dismissal

pursuant to Rule 41 (b) for failure to prosecute is appropriate.
First, for more than eight months, Plaintiff has failed to comply with the Cami's Order of
Service dated October 21, 2014. Dkt. No. 6. For more than three months Plaintiff has failed to
comply with the Court's February 19, 2015 Order, which even gave Plaintiff an additional
amount of time to amend his Complaint or oppose Defendant's motion to dismiss. Dkt. No. 14.
And for almost two months, Plaintiff has failed to comply with the Court's most recent Order
directing Plaintiff to submit a letter to the Court regarding the pending motion by May 1, 2015.
Dkt. No. 15. Thus, a significant amount of time has elapsed since the Court first directed
Plaintiff to comply with its Order of Service in October 2014, and several months have passed
since the Court directed Plaintiff to respond in some form to Defendant's pending motion to
dismiss.
Second, as noted above, the Court's October 21, 2014 Order put Plaintiff on notice that
failure to complete the USM-285 form or to request a summons with respect to Defendant
Corizon could result in dismissal for failure to prosecute. Dkt. No. 6 at 2. In addition, the
Court's Order dated April 2, 2015 put Plaintiff on notice that failure to submit by May 1, 2015

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any letter to the Court regarding Defendant's motion to dismiss shall result in dismissal of his
case. Dkt. No. 15 at 1.
Third, because this case is in its early stages, it appears that the prejudice to Defendant
occasioned by further delay in the proceedings is relatively modest. Nonetheless, Defendant's
motion to dismiss Plaintiff's Complaint has been pending since February 19, 2015-more than
four months-without opposition or any communication regarding the motion. This Court
endeavors to provide the parties appearing before it with prompt resolution of pending motions;
to the extent possible, it aims to resolve all motions within the time frame encouraged by the
Civil Justice Reform Act of 1990 ("CJRA"), 28 U.S.C. § 476. See U.S. East Telecomm. v. U.S.
West Info. Sys., 15 F.3d 261, 263 (2d Cir. 1994) ("By a provision of the [CJRA], the Director of

the Administrative Office of the United States Courts must report to the public, for each judicial
officer and by case name, those motions that have been pending for more than six months").
Even if modest, Defendant is prejudiced by this ongoing delay in the proceedings and by the
delay in resolving its pending motion.
Fourth, as noted above, this Court endeavors to resolve pending motions as quickly as
possible and, consistent with the CJRA, to move cases along efficiently. The Court has provided
Plaintiff with multiple opportunities to be heard, but Plaintiff has not so much as communicated
with this Court since filing his Complaint. As other courts have noted, "[i]t is not the function of
this Court to chase dilatory plaintiffs while other litigants in this district seek access to the
courts." Holcombe v. Skupien, No. 14-CV-1448 (PAC) (.TLC), 2014 U.S. Dist. LEXIS 170143,
at *8-9 (S.D.N.Y. Dec. 5, 2014) (quoting Hibbert v. Apfel, No. 99 Civ. 4246 (SAS), 2000 U.S.
Dist. LEXIS 9791, at *7 (S.D.N.Y. July 17, 2000)).
Fifth, the usual sanction for failure to prosecute under Rule 41 (b) is dismissal with
prejudice. See Fed. R. Civ. P. 41(b) ("Unless the dismissal order states otherwise, a dismissal u
under this rule-except one for lack of jurisdiction, improper venue, or failure to join a party
under Rule 19-operates as an adjudication on the merits."). However, "because the sanction of
dismissal with prejudice 'has harsh consequences,"' the Second Circuit has "instructed that 'it
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should be used only in extreme situations."' Baptiste, 768 F.3d at 217 (quoting Mitchell v. Lyons

Prof"! Servs., Inc., 708 F.3d 463, 467 (2d Cir. 2013)).
The Court is unaware of how a lesser sanction than dismissal would prompt Plaintiff to
comply with the Court's orders given that Plaintiff has not responded to the Court's orders or
otherwise communicated an intention to participate in this case since filing his Complaint in
September 2014-even after the Court provided an express warning that he faced dismissal if he
did not submit a letter by May 1, 2015. Melendez v. City of New York, No. 12-cv-9241 (AJN),
2014 U.S. Dist. LEXIS 168859, at *8-9 (S.D.N.Y. Dec. 4, 2014). However, because this case
does not present an "extreme situation," the Court will impose the lesser sanction of dismissal
without prejudice. Accord Holcombe, 2014 U.S. Dist. LEXIS 170143, at *9 (recommending, in
a case in which a prisoner failed to respond to the Court's orders and failed to provide a current
address, that the appropriate sanction was a dismissal without prejudice).
IV.

CONCLUSION
For the reasons provided above, this case shall be dismissed without prejudice for failure

to prosecute. This resolves Dkt. No. 11 and the Clerk of Court is directed to close this case. The
Court further finds 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 for the purpose of any
appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

Dated:

June~~, 2015
New York, New York

United States District Judge

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