Wood v. Venettozzi et al

Filing 93

ORDER OF DISMISSAL: Accordingly, Plaintiff's case is dismissed without prejudice for failure to prosecute. See Savatxath v. City of Binghamton, No. 12-CV-1492, 2013 WL 4805767, at *1 (N.D.N.Y. Sept. 9, 2013) (dismissing case for failure to prosecute after the plaintiff "neglected to comply with an order... requiring him to notify the court... as to why th[e] action should not be dismissed for failure to prosecute"); Djokovic v. U.S. Justice Dep't, No. 07-CV-2608, 2008 WL 3200191, at *12 (E.D.N.Y. Aug. 6, 2008) (dismissing case for, among other reasons, failure to prosecute where the plaintiffs were ordered to submit a letter stating "whether [they] intend[ed] to proceed with th[e] action," but plaint iffs failed to submit such a letter); Lopez v. Catholic Charities of the Archdiocese of N.Y., No. 00-CV-1247, 2001 WL 50896, at *4 (S.D.N.Y. Jan. 22, 2001) (dismissing for failure to prosecute where plaintiff "ceased to prosecute [the] action at all" for three months). SO ORDERED. (Signed by Judge Kenneth M. Karas on 9/21/2021) (va)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOHNNY WOOD,
Plaintiff,
-v-

No. 16-CV-8142
ORDER OF DISMISSAL

C.O. P. BYRD, et al.,
Defendants.
KENNETH M. KARAS, United States District Judge:

Plaintiff Johnny E. Wood (“Plaintiff”) brought this Action against Correction Officers
Jovan Perez (“Perez”), Peter Byrd (“Byrd”), Juan E. Rodriguez (“Rodriguez”), and Michael
Manson (“Manson”); Nurses Travis (“Travis”) and M. Brown (“Brown”); and Lieutenant
William Vesneske (“Vesneske”) (collectively “Defendants”). On February 4, 2020, the Court
issued an Opinion & Order granting Defendants’ Motion To Dismiss or Transfer Venue. (Dkt.
No. 89.) The Court thereby dismissed all claims against Defendants Perez, Byrd, Rodriguez, and
Brown, and transferred the remaining claims to the Northern District of New York. (Id.) The
Court provided Plaintiff 30 days to submit an amended complaint if he wished to continue to
prosecute claims against the dismissed Defendants. (Id.) Plaintiff’s first deadline to amend
passed on April 5, 2020. (Dkt. No. 90). The Court granted Plaintiff’s request to extend this
deadline. (Dkt. No. 92). Plaintiff’s extended deadline to amend passed on April 30, 2020, and
Plaintiff has not submitted an amended complaint.
This Court has the authority to dismiss a case for failure to prosecute. See Fed. R. Civ. P.
41(b). Rule 41(b) of the Federal Rules of Civil Procedure provides that a case may be
involuntarily dismissed if a plaintiff “fails to prosecute or to comply with these rules or a court

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order.” See id. Although Rule 41(b) expressly addresses a situation in which a defendant moves
to dismiss for failure to prosecute, it has long been recognized that a district court has the
inherent authority to dismiss for failure to prosecute sua sponte. See 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)).
While dismissal under Rule 41(b) is subject to the sound discretion of the district courts,
see U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 250–51 (2d Cir. 2004), the Second
Circuit has stated that a Rule 41(b) dismissal is a “harsh remedy to be utilized only in extreme
situations,” see LeSane, 239 F.3d at 209 (quotation mark omitted) (quoting Theilmann v. Rutland
Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972)). The Second Circuit has further cautioned that
“pro se plaintiffs should be granted special leniency regarding procedural matters.” LeSane, 239
F.3d at 209 (citing Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)). “However, even pro se
litigants must prosecute claims diligently, and dismissal with prejudice is warranted where the
Court gives warning.” Jacobs v. Cty. of Westchester, No. 99-CV-4976, 2008 WL 199469, at *3
(S.D.N.Y. Jan. 22, 2008).
Before exercising its discretionary authority to dismiss for failure to prosecute, a district
court should consider the following 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 take[n] care to
strik[e] 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
judge has adequately assessed the efficacy of lesser sanctions.
Wood v. City of N.Y., No. 05-CV-2894, 2007 WL 2049686, at *1 (S.D.N.Y. July 13, 2007)
(alterations in original) (quotation marks omitted) (quoting LeSane, 239 F.3d at 209); see also
Hibbert v. Apfel, No. 99-CV-4246, 2000 WL 977683, at *2 (S.D.N.Y. July 17, 2000) (same). No
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single factor is dispositive. See Nita v. Conn. Dep’t of Envtl. Prot., 16 F.3d 482, 485 (2d Cir.
1994).
The Court concludes that these factors weigh in favor of dismissal of Plaintiff’s case.
Plaintiff was ordered at least three times to file an Amended Complaint and was instructed that a
failure to do so could result in dismissal. (See Dkt. Nos. 89–90, 92.) Plaintiff has failed to
comply with these Orders, despite the Court giving Plaintiff additional time beyond the extended
deadline of April 30, 2020. Accordingly, Plaintiff’s case is dismissed without prejudice for
failure to prosecute. See Savatxath v. City of Binghamton, No. 12-CV-1492, 2013 WL 4805767,
at *1 (N.D.N.Y. Sept. 9, 2013) (dismissing case for failure to prosecute after the plaintiff
“neglected to comply with an order . . . requiring him to notify the court . . . as to why th[e]
action should not be dismissed for failure to prosecute”); Djokovic v. U.S. Justice Dep’t, No. 07CV-2608, 2008 WL 3200191, at *1–2 (E.D.N.Y. Aug. 6, 2008) (dismissing case for, among
other reasons, failure to prosecute where the plaintiffs were ordered to submit a letter stating
“whether [they] intend[ed] to proceed with th[e] action,” but plaintiffs failed to submit such a
letter); Lopez v. Catholic Charities of the Archdiocese of N.Y., No. 00-CV-1247, 2001 WL
50896, at *4 (S.D.N.Y. Jan. 22, 2001) (dismissing for failure to prosecute where plaintiff
“ceased to prosecute [the] action at all” for three months).
SO ORDERED.
DATED:

September 21, 2021
White Plains, New York

________________________________
KENNETH M. KARAS
UNITED STATES DISTRICT JUDGE

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