McGarrell v. City of New York et al

Filing 67

REPORT AND RECOMMENDATION: For the foregoing reasons, this action should be dismissed pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute. The Clerk is requested to mail a copy of this Report and Recommendation to Floyd McGarrell at the address below. And as set forth herein. Objections to R&R due by 6/29/2020 (Signed by Magistrate Judge Gabriel W. Gorenstein on 6/15/2020) (ama) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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FLOYD MCGARRELL,
:
:
Plaintiff,

REPORT AND
RECOMMENDATION

:
-v.-

18 Civ. 1301 (AT) (GWG)
:

CITY OF NEW YORK, et al.,
:
Defendants.
:
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GABRIEL W. GORENSTEIN, United States Magistrate Judge
Pro se plaintiff Floyd McGarrell brought this action pursuant to 42 U.S.C. § 1983,
alleging the defendants caused him to suffer physical distress, loss of property, emotional
distress, and excessive pain while incarcerated. See Complaint, filed Feb. 13, 2018 (Docket
# 2). An initial pretrial conference was held before the undersigned on May 21, 2019.
On October 17, 2019, defendants moved to compel McGarrell to respond to certain
discovery requests (Docket # 51). On October 18, 2019, the Court ordered McGarrell to
respond by November 8, 2019, warning that “if he fails to do so, his case may be dismissed”
(Docket # 52). McGarrell failed to respond and defendants again moved to compel production
(Docket # 53). By Order dated November 20, 2019, the Court again directed McGarrell to
respond and contact defendants’ counsel by December 13, 2019, and stated that if he failed to
comply “his case may be dismissed for violating court orders or for failure to prosecute” (Docket
# 54) (emphasis omitted). McGarrell failed to comply with this order as well (Docket # 55).
On March 2, 2020, defendants moved to dismiss this case for lack of prosecution (Docket
# 58). The motion was then referred to the undersigned for a Report and Recommendation
(Docket # 61). By Order dated March 3, 2020, McGarrell was directed to file his opposition to
the motion to dismiss by April 3, 2020, and he was “warned that if he fails to comply with this
order, his case may be dismissed” (Docket # 63). McGarrell did not respond, but by Order
dated April 29, 2020, the Court extended the deadline for him to file an opposition to May 22,
2020 (Docket # 64). Again, he was “warned that if he fails to comply with this order, his case
may be dismissed” (Docket # 64).
McGarrell never filed a response, requested an extension of time to respond, or contacted
the Court in any other way.
Fed. R. Civ. P. 41(b) provides in relevant part:

If the plaintiff fails to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this subdivision . . . operates as
an adjudication on the merits.
A decision to dismiss an action for failure to prosecute “may be made sua sponte.”
Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998) (citing Minnette v. Time Warner, 997 F.2d
1023, 1027 (2d Cir. 1993)). Although dismissal is “‘a harsh remedy to be utilized only in
extreme situations,’” Hoefer v. Bd. of Educ. of the Enlarged City Sch. Dist. of Middletown, 820
F.3d 58, 64 (2d Cir. 2016) (quoting Jackson v. City of N.Y., 22 F.3d 71, 75 (2d Cir.1994)), “the
authority to invoke it for failure to prosecute is vital to the efficient administration of judicial
affairs and provides meaningful access for other prospective litigants to overcrowded courts,”
Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982). The “court should not
have to beg the parties before it to litigate the cases they initiate.” McLean v. City of N.Y.,
2007 WL 415138, at *4 (S.D.N.Y. Feb. 6, 2007). A district court has the authority “under Fed.
R. Civ. P. 41(b) to dismiss a complaint for failure to comply with a court order, treating the
noncompliance as a failure to prosecute.” Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995)
(citing Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962), and Harding v. Fed. Reserve Bank
of N.Y., 707 F.2d 46, 50 (2d Cir. 1983)); see also Caussade v. United States, 293 F.R.D. 625,
629 (S.D.N.Y. 2013) (“Dismissal for lack of prosecution or for failure to comply with an order of
the court is a matter committed to the discretion of the district court.”) (citing Link, 370 U.S. at
633). And “while pro se litigants may in general deserve more lenient treatment than those
represented by counsel, all litigants, including [those proceeding pro se], have an obligation to
comply with court orders.” McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d
121, 124 (2d Cir. 1988). “[D]ismissal of a pro se litigant’s action as a sanction may . . . be
appropriate ‘so long as a warning has been given that noncompliance can result in dismissal.’”
Koehl v. Bernstein, 740 F.3d 860, 862 (2d Cir. 2014) (per curiam) (quoting Valentine v.
Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994) (per curiam)).
A district court considering a dismissal pursuant to Rule 41(b) 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) (per curiam) (internal quotation marks
omitted) (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)). No single factor is
dispositive. Id. (citation omitted).
These factors strongly counsel in favor of dismissal. McGarrell has taken no action
since he appeared at the Court’s conference on May 21, 2019, and has not filed anything on the
docket since his change of address form which was received on July 17, 2018 (Docket # 28).
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He disobeyed two orders of the Court requiring him to respond to the defendants’ document
requests. The Court warned McGarrell that failure to comply with the October 18 and
November 20, 2019, Orders could result in dismissal; specifically instructed McGarrell to
respond to the March 4 and April 29, 2020, Orders to oppose defendants’ motion to dismiss and
explain why the case should not be dismissed; and warned McGarrell that failure to comply with
any of these Orders could result in dismissal. McGarrell has now failed to comply with four
orders of the Court. McGarrell has twice filed change of address forms (Docket ## 10, 28),
demonstrating he understands the importance of updating his address with the Court. The
defendants are likely to be prejudiced by McGarrell’s delay as witnesses’ memories fade. The
Court has a strong interest in managing its docket and cannot indefinitely wait for McGarrell to
turn his attention back to this case. Furthermore, his “failure to comply with the court’s order or
make an attempt to prosecute this case dismisses his right to have the court hear his claim.”
George v. Cousins Printing LLC, 2008 WL 4093057, at *2 (S.D.N.Y. Sept. 2, 2008) (citing
Feurtado v. City of N.Y., 225 F.R.D. 474, 480 (S.D.N.Y.2004)). Finally, in light of McGarrell’s
persistence in not complying with Court orders, the Court does not believe that any lesser
sanction will succeed in altering his behavior and moving this case to a conclusion. All
indications are that McGarrell would ignore any order imposing a lesser sanction as well.
Accordingly, dismissal of this case is appropriate. See Ruzsa v. Rubenstein & Sendy Attys at
Law, 520 F.3d 176, 178 (2d Cir. 2008) (per curiam) (“[I]n light of [plaintiff’s] failure to respond
to the notice threatening dismissal, it is . . . unclear that a lesser sanction would have proved
effective in this case.”) (internal quotation marks omitted); cf. Rubin v. Abbott Labs., 319 F.R.D.
118, 122 (S.D.N.Y. 2016) (“dismissal is the only adequate remedy for failure to prosecute where
a plaintiff cannot be contacted, because the plaintiff would be unaware of any lesser sanction”)
(collecting cases).
For the foregoing reasons, this action should be dismissed pursuant to Fed. R. Civ. P.
41(b) for failure to prosecute. The Clerk is requested to mail a copy of this Report and
Recommendation to Floyd McGarrell at the address below.

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PROCEDURE FOR FILING OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil
Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of
this Report and Recommendation to file any objections. See also Fed. R. Civ. P. 6(a), (b), (d).
A party may respond to any objections within 14 days after being served. Any objections and
responses shall be filed with the Clerk of the Court. Any request for an extension of time to file
objections or responses must be directed to Judge Torres. If a party fails to file timely
objections, that party will not be permitted to raise any objections to this Report and
Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner,
LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir.
2010).
McGarrell may file his response by email by sending it in pdf form to
[e-mail]. In the alternative, the response may be mailed
to Pro Se Docketing, 500 Pearl Street, New York, NY 10007.
Dated: New York, New York
June 15, 2020

Mail to:
Floyd McGarrell
713 St. Nicholas Ave., Apt. #9
New York, New York, 10031

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