Ruiz v. Keratin Bar

Filing 182

ORDER: For the foregoing reasons, this case is DISMISSED without prejudice for failure to prosecute. The Clerk of Court is respectfully directed to close any open motions and to close the case. The Clerk of Court is further directed to mail a copy of this Order to Plaintiff Angel Ruiz at 1 Metropolitan Oval, Apt. 3E, Bronx, NY 10462, and to note the mailing on the docket. SO ORDERED. (Signed by Judge Valerie E. Caproni on 8/10/2023) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
ANGEL RUIZ,
:
:
Plaintiff,
:
:
-against:
KERATINBAR INC. and 1976 HEALTHCARE INC., :
:
:
Defendants.
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 08/10/2023

17-CV-2216 (VEC)
ORDER

VALERIE CAPRONI, United States District Judge:
Plaintiff Angel Ruiz (“Plaintiff”), a hairstylist, sued Defendants KeratinBar Inc. and 1976
Healthcare Inc. (“Defendants”), his alleged former employers, for employment discrimination
and hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., as well as for employment discrimination, hostile work environment, and failure to
accommodate a disability under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112
et seq. See Compl., Dkt. 2; Second Am. Compl., Dkt. 98. For the following reasons, this case is
DISMISSED for failure to prosecute.
BACKGROUND
Plaintiff commenced this action pro se on March 27, 2017. See Compl. He eventually
retained counsel on a contingency fee basis. See Opinion & Order, Dkt. 158, at 1 (citing Borrelli
Decl., Dkt. 153, ¶ 5). Over the ensuing three years, the case wound its way through the stages of
litigation, until it became ripe for trial.
On March 25, 2020, less than a month before jury selection was scheduled to begin, the
Court adjourned trial in light of the public health crisis posed by the COVID-19 pandemic. See

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Order, Dkt. 132. That adjournment was extended sine die on May 12, 2020, when it became
clear that the pandemic showed no sign of ending soon. See Order, Dkt. 139. 1
On October 5, 2020, Plaintiff’s counsel moved to withdraw due to a complete breakdown
in the attorney-client relationship; Plaintiff purportedly “verbally harassed, insulted, demeaned,
berated, and cursed at” firm employees despite warnings that such behavior would lead to
counsel’s withdrawal. See Not. of Mot., Dkt. 152; Borrelli Decl., Dkt. 153, ¶ 2. Plaintiff
accused counsel of a variety of wildly inappropriate conduct, including negligently and
intentionally endangering Plaintiff’s life and causing him to suffer significant medical incidents
including seizures and near-fatal allergy attacks. See Letters, Dkts. 156–57. On December 3,
2020, the Court granted counsel’s motion to withdraw. See Opinion & Order, Dkt. 158.
In or around December 2020, Plaintiff began repeatedly calling chambers and accusing
the Court of bias. See Order, Dkt. 160. On December 8, 2020, the Court denied Plaintiff’s
apparent request that the Court recuse itself and ordered Plaintiff to refrain from calling
chambers. Id. On January 5, 2021, Plaintiff filed a letter once again accusing his former counsel
and the Court of misconduct. Plaintiff also indicated that he could not find counsel to represent
him in this case and that he was too ill to represent himself. The Court reiterated that Plaintiff’s
former counsel had been terminated and that he should only communicate to the Court through
the Pro Se Office. It also encouraged Plaintiff to register as a user on the ECF system to
facilitate his self-representation. See Letter & Order, Dkt. 161.
Over the next two years, Plaintiff took no action to move his case forward. Meanwhile,
the Court gradually resumed in-person proceedings as the COVID-19 pandemic abated.

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The parties engaged in settlement discussions in July 2020, but were unable to resolve the matter. See
Opinion & Order, Dkt. 158, at 2.

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On March 8, 2023, in light of Plaintiff’s failure to move the case forward or to hire new
counsel, the Court ordered the parties to appear for an in-person status conference. See Order,
Dkt. 162. Plaintiff repeatedly called chambers in tears, and Plaintiff eventually told chambers
staff that he would not be able to attend the proceeding; the Court canceled the conference and
required the parties to submit a joint letter indicating whether either side objected to the Court
staying the case until Plaintiff notified the Court that he was prepared to proceed to trial or that
he wished to dismiss the action. See Order, Dkt. 163.
On April 6, 2023, and April 10, 2023, the Court received letters from Plaintiff making
disturbing accusations against counsel and the Undersigned, including that, when Plaintiff was
purportedly assaulted by a group of police officers in the courthouse, the Undersigned took steps
to hide the assault from law enforcement. See Letters, Dkt. 164–65. Plaintiff also suggested that
he was not prepared to proceed pro se. Id.
In light of Plaintiff’s letters, the Court invited Plaintiff to file a request for the Court to
seek pro bono counsel to represent him. See Order, Dkt. 166. Plaintiff made a request for
counsel, and the Court directed the Pro Se Office to inquire as to the availability of pro bono
representation. See Application, Dkt. 167; Order, Dkt. 168. The Court emphasized to Plaintiff,
however, that his application “would not guarantee appointment of pro bono counsel”; the Court
also required any volunteer attorney to file a notice of appearance by June 16, 2023. See Orders,
Dkts. 166, 168. To date, no counsel has volunteered to represent Plaintiff.
On June 23, 2023, the Court ordered Plaintiff to submit a letter by July 14, 2023, stating
whether he was prepared to proceed to trial or whether there were other grounds for the Court
not to dismiss his case for failure to prosecute, or whether he wished voluntarily to dismiss the
case. See Order, Dkt. 169. That same day, the Court received a letter from Plaintiff indicating

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that he had reported the Undersigned to the Second Circuit and to the New York Commission on
Judicial Conduct for alleged misconduct. See Letter, Dkt. 170; see also Letter, Dkt. 171.
On June 30, 2023, Plaintiff filed a purported third amended complaint against his former
counsel, former defense counsel, federal police, John Does, and the Undersigned, reiterating
accusations in his previous letters to the Court. See Letter, Dkt. 172. Plaintiff subsequently
informed the Court that he planned on representing himself and trying the case virtually given
his disability and “traumatic” experience at the courthouse. See Letter, Dkt. 173.
On July 11, 2023, the Court denied Plaintiff’s request to try the case remotely and
indicated that, if Plaintiff sought to pursue the action, he needed to attend Court proceedings in
person unless he could provide a doctor’s note or other credible evidence substantiating his
purported inability to attend proceedings. See Order, Dkt. 174. The Court scheduled an inperson status conference for August 9, 2023, and warned Plaintiff that failure to attend the
hearing without a valid excuse would serve as grounds for dismissal of this action for failure to
prosecute. Id. 2
Over the following weeks, Plaintiff submitted several letters to the Court reiterating his
past allegations of abuse and misconduct, and purporting to justify his refusal to appear for the
August 9, 2023, proceeding in person. See Letters, Dkts. 175, 177, 178. Plaintiff also repeatedly
called chambers in tears asserting that he could not appear in Court. The only evidence Plaintiff
proffered in support of his request to appear remotely was a March 3, 2021, letter from a nurse
practitioner asserting that Plaintiff had “health conditions that render[ed] him unable to travel”
and made him “more vulnerable to COVID-19 infection.” See Letter, Dkt. 175, at 4. The Court

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The Court also directed the Clerk of Court to strike Plaintiff’s purported third amended complaint from the
docket because it was filed without leave of Court and asserted an entirely different action against an entirely new
group of defendants. The Court directed Plaintiff to file a separate action to the extent he sought to pursue the
allegations in his purported amended complaint. See Order, Dkt. 174.

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repeatedly informed Plaintiff that his proffered evidence was insufficient to justify any failure to
appear at the scheduled hearing, which would take place more than two years after his medical
provider’s note had been issued, and which did not require travel. The Court also reiterated that
Plaintiff’s failure to appear without a valid excuse could result in dismissal of this action for
failure to prosecute. See Orders, Dkts. 176, 179, 180.
On August 9, 2023, Plaintiff failed to attend the scheduled status conference. Defendants
indicated at the hearing that they did not oppose dismissal of the action without prejudice for
failure to prosecute.
Although Plaintiff has now submitted more fulsome medical records to the Court, filed
under seal, the most recent encounter record was dated March 18, 2021, and it did not address
Plaintiff’s present ability to attend the scheduled proceeding. Plaintiff’s submission included a
July 19, 2023, note from a nurse practitioner at the Callen-Lorde Community Health Center
(“Callen-Lorde”). The note stated that Plaintiff “ha[d] been seen” at Callen-Lorde “in the past”
and that he has “multiple health conditions that according to [Plaintiff]” render him “unable to
travel.” See Note, Dkt. 181 (emphasis added).
DISCUSSION
A district court may dismiss an action sua sponte “[i]f the plaintiff fails to prosecute or to
comply with [the] rules or a court order.” Fed. R. Civ. P. 41(b); see also LeSane v. Hall’s Sec.
Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001). When deciding whether to dismiss a case for
failure to prosecute, courts should consider: “(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

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interest in receiving a fair chance to be heard, and (5) whether the judge has adequately
considered a sanction less drastic than dismissal.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir.
1996) (internal quotation marks and citation omitted). “No single factor is generally
dispositive.” Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (citation omitted).
Although district courts “should be especially hesitant to dismiss for procedural deficiencies” if
the plaintiff is pro se, Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996), “even pro se litigants
must prosecute claims diligently, and dismissal . . . is warranted where the Court gives warning,”
King v. Garcia, No. 21-CV-09118 (PMH), 2023 WL 3724982, at *3 (S.D.N.Y. May 30, 2023)
(internal quotation marks and citation omitted).
This case has been at a standstill since March 2020. Although part of that delay is
attributable to the COVID-19 pandemic and Plaintiff’s breakdown in communication with
former counsel, Plaintiff failed to take any action to move this case forward long after counsel
was terminated and the pandemic began to recede. When the Court scheduled a status
conference five months ago in the hopes of moving the case to trial, Plaintiff made accusations
against former counsel and the Undersigned instead of either appearing as required or credibly
substantiating why he could not come to Court. The Court nevertheless gave Plaintiff the
opportunity to request pro bono counsel; when that request did not yield representation, Plaintiff
rehashed the same incredible accusations. Despite the Court’s repeated warnings that failure to
appear at the August 9, 2023, status conference without a valid excuse could result in dismissal
of this action, Plaintiff chose not to attend the proceeding.
The medical note provided to the Court by Plaintiff, dated July 19, 2023, does not
provide “credible evidence,” Order, Dkt. 176, that Plaintiff is medically unfit to attend a court
proceeding. It is evidence only that Plaintiff told the medical provider that Plaintiff believes he

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is medically unable to attend court — the Court has never questioned the fact that Plaintiff
believes he is unable to come to court.
In light of Plaintiff’s repeated and longstanding failure to obey Court orders, appear for
proceedings, or propose any workable way to try this case, dismissal without prejudice is
appropriate. See Shannon v. General Elec. Co., 186 F.3d 186, 193–96 (2d Cir. 1999) (affirming
dismissal for failure to prosecute where, inter alia, the plaintiff “failed to prosecute his lawsuit
over a prolonged period,” was given notice that further delays would result in dismissal, and
prejudice against defendants could be “presumed” given the plaintiff’s delay (citation omitted));
Bellas v. Richmond Cty. Ambulance Serv. Inc., No. 15-CV-2192 (JBW), 2015 WL 9948256, at
*2–3 (E.D.N.Y. Dec. 22, 2015) (dismissing for failure to prosecute in part because the plaintiff
did not appear at a scheduled hearing after being warned that failure to attend would serve as
grounds for dismissal and collecting cases), report & recommendation adopted, 2016 WL
416370 (E.D.N.Y. Feb. 2, 2016); Feurtado v. City of N.Y., 225 F.R.D. 474, 481 (S.D.N.Y. 2004)
(dismissing for failure to prosecute despite the plaintiff’s pro se status because “he was warned
of the consequences of disobeying the Court’s Orders, and his conduct . . . effectively prevented
th[e] case from going forward”).

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CONCLUSION
For the foregoing reasons, this case is DISMISSED without prejudice for failure to
prosecute.
The Clerk of Court is respectfully directed to close any open motions and to close the
case. The Clerk of Court is further directed to mail a copy of this Order to Plaintiff Angel Ruiz
at 1 Metropolitan Oval, Apt. 3E, Bronx, NY 10462, and to note the mailing on the docket.

SO ORDERED.
____________________________
_________________________________
CAPRON
NI
VALERIE CAPRONI
United States District Judge

Date: August 10, 2023
New York, NY

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