Whitley v. Bowden et al

Filing 79

REPORT AND RECOMMENDATION: For the foregoing reasons, I conclude, and respectfully recommend that Your Honor should conclude, that Defendants' motion to dismiss for failure to prosecute should be denied, without prejudice in the event of any future failure by Plaintiff to prosecute the action. The undersigned does suggest to Plaintiff that after he is released from custody he should find a reliable means of receiving mail from the Court and from Defendants' counsel. (Signed by Magistrate Judge Lisa Margaret Smith on 4/4/2019) Objections to R&R due by 4/18/2019 (ks)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
VIDAL M. WHITLEY,
Plaintiff,
- against 17cv3564(KMK)(LMS)
ADRIAN BOWDEN, R.N., et al.,
Defendants.

REPORT AND
RECOMMENDATION

TO: THE HONORABLE KENNETH M. KARAS, U.S.D.J.
Defendants have made a Motion to Dismiss this case for failure of the Plaintiff to
participate in discovery and otherwise prosecute this action. Docket ## 73, 74. Plaintiff has
opposed the motion. Docket # 77. No reply has been filed. For the reasons set forth below, I
respectfully recommend to Your Honor that you deny the motion.
Pro se Plaintiff Vidal M. Whitley commenced this action on May 11, 2017, asserting
claims under 42 U.S.C. § 1983 for, inter alia, violations of his rights under the Eighth and
Fourteenth Amendments for deliberate indifference to his medical needs resulting from a drug
overdose. Docket # 1, Complaint. On February 14, 2018, Defendants filed a Motion to Dismiss.
Docket #31. By Opinion and Order filed May 10, 2018, Your Honor granted in part and denied
in part the Motion to Dismiss, granting Plaintiff permission to file an Amended Complaint within
30 days.1 Docket # 42. No Amended Complaint was filed. The claims remaining in the case
were the Eighth Amendment claims against Defendants Bowden, Bucolo, and Bentivegna.
Answers were filed by these three remaining Defendants on July 2, 2018. Docket ## 52, 53, and

1

The facts alleged in the Complaint are set forth in Your Honor's Opinion and Order, and
are not repeated here.

54. On September 20, 2018, a scheduling order was put into place. Docket # 65. On October
23, 2018, the case was referred to the undersigned for General Pre-trial purposes. Docket # 67.
The first scheduled appearance before the undersigned was on November 20, 2018.
Plaintiff, who was still incarcerated in state prison at the time, appeared by telephone. According
to Plaintiff, the maximum expiration date for his sentence was November 27, 2018. Docket # 41.
The next conference was scheduled for December 20, 2018. Minute Entry for November 20,
2018. On December 20, 2018, counsel for Defendants appeared, but Plaintiff did not call either
the Court or Defendants' counsel. Minute Entry for December 20, 2018. The matter was
adjourned to January 17, 2019, and Plaintiff was cautioned that his failure to appear by telephone
may result in the imposition of sanctions, including granting Defendants the opportunity to move
to dismiss for failure to prosecute. On January 17, 2019, counsel for Defendants appeared, but
Plaintiff did not contact either the Court or Defendants' counsel. Minute Entry for January 17,
2019. The matter was adjourned to February 13, 2019, and Plaintiff was cautioned that his
failure to appear by telephone may result in the imposition of sanctions, including granting
Defendants the opportunity to move to dismiss for failure to prosecute. On February 13, 2019,
counsel for Defendants appeared, but Plaintiff did not reach out either to the Court or to
Defendants' counsel. Minute Entry for February 13, 2019. Defendants were granted to March
11, 2019, to make their Motion to Dismiss for failure to prosecute. They filed their motion
timely. Docket ## 73, 74.2
2

Defendants' Motion consists of a Notice of Motion (Docket #73) and a Memorandum of
Law (Docket #74). There are a variety of documents attached to the Memorandum of Law, but
there is no Affidavit or Affirmation sufficient to identify those exhibits, as required by Local
Civil Rules 7.1(a)(3), and 1.9. For this reason alone, the Motion could be denied for failure to
comply with the Local Rules. The undersigned notes, however, that the initial Motion to Dismiss
2

On March 20, 2019, Defendants' counsel sent to the Court a copy of a letter sent to
Plaintiff, acknowledging that Plaintiff had left counsel a voicemail message advising counsel that
Plaintiff was, at that time, incarcerated in the Monroe County Jail, in Rochester, New York.
Docket # 75. On March 25, 2019, Plaintiff sent a letter to the Court with his new address.
Docket # 76. On March 19, 2019, Plaintiff sent to the Court his Opposition to Defendants'
Motion to Dismiss.3 Docket # 77. It was docketed on March 27, 2019.
Plaintiff's Opposition to the Motion to Dismiss consists of six pages containing one runon sentence explaining his failure to appear and to respond, which is partially set forth here:
Grounds of opposition I ask & or request the courts
lienency [sic] as I would like to mention the fact that it is a very
hard transition from being locked in a cell 23 & 1 for 8 ½ years &
then being kicked & thrown out to a world thats [sic] moving so
rapidly & yet demanding so much of you as mentioned in aag
powers motion to dismiss things were mailed to an address I
provided I'm sure yet I never recieved [sic] them at my
Grandmothers house as she is 73 years old & she is suffering from
memory loss & many other things so when she gets the mail I'm at
work or a drug & alcohol class per parole or mental health my
grandmother never told me anything came for me in the mail She
doesn't remember that far back she loses a lot of stuff . . . so all
though [sic] the courts sent things & AAG Janice Powers sent
things I never received them however I would definately [sic] at
this time like to remind everyone this is the 1st issue I've ever had
with meeting an [sic] deadline & or anything of this nature vs
Janice Powers taking and putting other cases before mine missing
deadlines . . . or she takes a whopping 60 days to reply to one of
my arguments so long that the Honorable Judge Karas has to step
in & blow the whistle & say hey aag powers there will be no more
extentions [sic] granted to you even though after that there were

filed by Defendants, Docket ## 31, 32, also had no Affidavit or Affirmation, and Your Honor
nonetheless decided the Motion. This is, therefore, not a basis for my recommendation.
3

There is no evidence that Defendants' counsel sent the Motion to Dismiss to Plaintiff at
the Monroe County Jail, but by his response the undersigned presumes that it was, in fact, sent.
3

extentions [sic] granted to aag Janice Powers yet here we are shoe
on the other foot now all of a sudden Janice Powers isn't as
understanding for me & others as she was for herself & her
coworkers . . . FYI the day that the motion to dismiss 3/11/19 was
sent to Grandmothers house via mail I was all ready [sic] sitting in
jail for no apparent reason since 2/19/19 with that said I again ask
the courts for lienency [sic] & allow me the pro se litigant to
proceed I am currently sentenced to a 90 day program which is a
DOCCS Alternative program providing that I am allowed to
proceed – perhaps it will be easier to provide deposition upon
myself I will notify the courts & aag Janice Powers as well . . . See
Ms Powers I was released 11-27-18 too [sic] a world that is
heartless cold deadly if I'm not careful & one that you probabally
[sic] can't even imagine living in or fathom that exist [sic]. . . I do
not deserve for any of my cases to be Dismissed & I apologize If I
offended anyone with my personal life however I had to reviel [sic]
why I wasn't in compliance with this case now that were [sic] all
back on the same page you all can expect that there won't be any
more mishapps [sic] of any sort coming from me . . . .
Docket # 77. Defendants have not replied to Plaintiff's opposition to their motion.
For the reasons that follow, I conclude, and respectfully recommend that Your Honor
should conclude, that Defendants' motion should be denied without prejudice.
DISCUSSION
Rule 41(b) provides that a defendant may move to dismiss an action "[i]f the plaintiff
fails to prosecute or to comply with . . . a court order . . . ." FED. R. CIV. P. 41(b). Thus, under
Rule 41(b), a plaintiff is required to diligently prosecute his or her case. See Lyell Theatre Corp.
v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). However, the Second Circuit has cautioned that
a dismissal pursuant to Fed. R. Civ. P. 41(b) is a "harsh remedy," which should only be utilized
in "extreme situations." Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009) (citations omitted).
Additionally,
It is well established that a court is ordinarily obligated to afford a
4

special solicitude to pro se litigants. See Estelle v. Gamble, 429
U.S. 97, 106,(1976); Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474–75 (2d Cir. 2006); see also McDonald v. Head Criminal
Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988) ("[P]ro
se litigants may in general deserve more lenient treatment than
those represented by counsel."). The rationale underlying this rule
is that a pro se litigant generally lacks both legal training and
experience and, accordingly, is likely to forfeit important rights
through inadvertence if he [or she] is not afforded some degree of
protection. See Triestman, 470 F.3d at 475.
Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (parallel citations omitted). The Second
Circuit has provided the following five factors for the court to consider before dismissing an
action pursuant to Fed. R. Civ. P. 41(b):
whether (1) the plaintiff's failure to prosecute caused a delay of
significant duration; (2) plaintiff was given notice that further delay
would result in dismissal; (3) defendant was likely to be prejudiced
by further delay; (4) the need to alleviate court calendar congestion
was carefully balanced against plaintiff's right to an opportunity for
a day in court; and (5) the trial court adequately assessed the efficacy
of lesser sanctions.
Id. (citing United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004)).
The Second Circuit reviews dismissals pursuant to Fed. R. Civ. P. 41(b) only for abuse of
discretion. Id. at 575.
In this case, a review of the five factors militates against dismissal. First, Plaintiff has
delayed this case for just three months, from December 20, 2018, when he was scheduled to
appear at a court conference by telephone, until March 20, 2019, when Defendants' counsel
acknowledged that he had provided her his new address by telephone. Docket # 75. Although
this case has a lengthy history, that history includes delay caused by the Court (Complaint filed
May 11, 2017 (Docket # 1), service was effected on the Defendants and proof of service filed

5

with the Court on November 15, 2017, a delay of six months (Docket ## 11-15); consideration of
Motion to Dismiss from day of full submission – April 20, 2018 – to date of decision – May 10,
2018 – a delay of 20 days (Docket ## 31, 32, 35, 36, 38, 41, 42); delay between filing of
Defendants' Answers and the first conference, from July 2, 2018, to September 20, 2018, a delay
of two months and 19 days)), and by Defendants (Docket ## 17 and 18 reflect Defendants'
counsel's request for a total of 24 days' extension to file Answers on Defendants' behalf, followed
on December 18, 2017, by a request for permission to file a motion to dismiss, occasioning an
additional delay from December 21, 2017, to February 5, 2018, a 46 day delay (Docket ## 20,
21), followed on February 2, 2018, by a further request for an additional 10 day delay (Docket ##
27, 29), a total of 80 days' delay; following a decision on the Motion to Dismiss Plaintiff
promptly notified the Court he would not amend his Complaint (Docket #46), but Defendants
failed to Answer the remaining cause of action in the Complaint until the Court issued an Order
requiring them to do so (Docket ## 48, 51), with Answers being filed on July 2, 2018, causing a
further 15 day delay (Docket ## 52, 53, 54)). During at least part of the time of Plaintiff's three
month delay, he was incarcerated – according to his Opposition to the Motion to Dismiss, he was
re-incarcerated in County Jail since February 19, 2019, after having been released from state
custody on or about his maximum expiration date of November 27, 2018.4 The fact of Plaintiff's
re-incarceration may not have affirmatively prevented Plaintiff from contacting the Court or
counsel, but it certainly made such an effort more difficult.5

4

See Docket # 41 ("My maximum expiration date is 11/27/18."), and #77 ("I was released
11-27-18").
5

Defendants' counsel argues that Plaintiff failed to update his address after his release
from state prison, but he did notify the Court, on the record, of his new address on November 20,
6

It is well settled that there is no specific period of time that must elapse before a plaintiff's
failure to prosecute becomes significant enough to warrant dismissal. See Cain v. Simon &
Schuster, 11cv4460, 2013 WL 1608620, at *3 (S.D.N.Y. Apr. 15, 2013) (citation omitted);
Antonio v. Beckford, 05cv2225 (KMK), 2006 WL 2819598, at *2 (S.D.N.Y. Sept. 29, 2006).6
Typically delays must endure for more than three months in order to warrant dismissal. See
Cain, 2013 WL 1608620, at *3 ("In general, failure to prosecute for durations between two and
five months have been found to be insufficiently long to weigh in favor of dismissal, while
durations of five to eight months are usually sufficient."); see also Antonio, 2006 WL 2819598,
at *2 (plaintiff's failure to comply with court deadline for more than four months favored
dismissal); Caussade v. United States, 293 F.R.D. 625, 629–30 (S.D.N.Y. 2013) (plaintiff's
failure to cooperate with counsel on discovery, and inaccessibility to counsel, with duration of
more than seven months supported dismissal).
In this case Plaintiff's absence from conferences, and failure to comply with discovery
deadlines, has lasted for barely three months. Plaintiff has explained that he did not receive mail
sent to him, including from Defendants' counsel and from the Court, because his grandmother,
with whom he was living, did not give him his mail. Docket # 77. He also asserts that the
medication required by his parole officer made it difficult for him to remain alert ("I'm being
forced to take serious psychotropic medications by [my parole officer] that cause me to sleep",

2018. This is sufficient to satisfy the writing requirement for updating his address. See Local
Civil Rule 1.9.
6

In the spirit of Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009), copies of all unpublished
decisions cited herein have been provided to Plaintiff by the Court. It is not clear whether
Defendants' counsel complied with Local Rule 7.2 by providing copies of unpublished opinions
that are cited in the Memorandum of Law to the pro se Plaintiff.
7

Id. at p. 3). This was followed by a period of re-incarceration, which is apparently ongoing.
Although Plaintiff was aware of at least the first conference that he missed, scheduled for
December 20, 2018, this explanation is sufficient to explain his failure to participate in
subsequent conferences. On or about March 19, 2018, Plaintiff became aware of the Motion to
Dismiss and prepared his opposition. On or about March 20, 2018, Plaintiff notified Defendants'
counsel of his new address at the County jail.
Thus, considering the first factor, it cannot be said that Plaintiff's failure was of such
significant duration to support dismissal, especially where both the Court and Defendants'
counsel caused additional periods of delay, as discussed supra. Consideration of the first factor
supports denying the Defendants' Motion.
Additionally, it may be that Plaintiff did not ever receive the notifications for the
conferences on January 17 and February 13, which were the notifications which contained the
warning that failure to appear may result in sanctions, including dismissal. It is true that in the
initial Order of Service (Docket # 9) the Court admonished Plaintiff that "Plaintiff also must
notify the Court in writing if Plaintiff's address changes, and the Court may dismiss the Action if
Plaintiff fails to do so." However, this caution does not state that failure to appear or to
participate in discovery may have such a drastic result. Without some assurance that Plaintiff
actually received such notice of the potential consequences of failing to prosecute the matter, the
second factor is not satisfied, and this factor therefore militates against dismissal.
The third factor is whether Defendants would be prejudiced by further delay. In light of
the delay in this matter not caused by Plaintiff, it is difficult for the Court to ascertain how a three
month delay would cause prejudice to Defendants. Defendants argue that "Delay can result in
8

the increased expense of litigation to the State and even the loss of key evidence due to faded
memories of defendants and even of the expert retained in this case, changes in employment of
key witnesses, and resources wasted time and resources [sic]." Docket # 74 at page 8. This
argument is solely hypothetical, and identifies no actual prejudice to Defendants, it merely
references theoretically possible prejudice. Additionally, Defendants argue that "Defendants
have also been prejudiced by the fact that they have been forced to expend time and resources to
defend this action and appear in person before the Court on several occasions when Plaintiff
failed to appear by phone." Id. at page 9. It is difficult to understand how much expenditure of
time and resources actually occurred, when, according to Google Maps, the time and distance for
a person to walk between Defendants' counsel's office and the Courthouse is between 16 and 17
minutes, for a distance of 8/10 of a mile. By contrast, counsel in the case cited by Defendants,
Wacha v. Town of Deerpark, 06cv15531, Docket ## 69 and 70 (S.D.N.Y. May 9, 2008), attended
five conferences which Plaintiff failed to attend, and may have traveled from Carle Place (Long
Island), New York, Buffalo, New York, Birmingham, Alabama, Middletown, New York, and
Garden City (Long Island), New York, to attend those five conferences.7 Id., Docket Sheet.
Thus, the likely expenditure of time and resources in Wacha was much greater than what may
have been expended in this case.
Defendants' counsel also argues that "Defendants have provided all discovery in its
possession, and has received almost from Plaintiff [sic] in return." Docket # 75, at page 9. Even
assuming that counsel meant to write that Defendants had received almost no discovery from
7

The docket sheet does not make clear which attorneys, if any, actually appeared at any
given conference for that case. In the instant case, Defendants' counsel did appear in person at
each of the three conferences which were missed by Plaintiff.
9

Plaintiff, that is not a surprise; in the experience of the undersigned, plaintiffs in these types of
cases rarely have very much discovery to produce. Moreover, Plaintiff has asserted that he
received none of the mail sent to his grandmother's house after his release, some of which
presumably related to discovery. Counsel also argues that Plaintiff's reluctance to sign a HIPAA
release for his medical records is somehow evidence of prejudice to Defendants, even though on
November 20, 2018, at the conference before the undersigned where Plaintiff did participate, he
was ordered to sign such a release; this assertion has no relevance to any claim of prejudice
against Defendants resulting from the failure of Plaintiff to prosecute for the period December
20, 2018, to March 20, 2018, when Plaintiff provided his contact information to Defendants'
counsel, and, subsequently, to the Court.
Defendants' counsel also argues that there is somehow prejudice to Defendants because
the case involves claims made by Plaintiff while he was a prisoner and he is now "a civilian who
resides in Rochester New York." Id. Of course, we now know that he is re-incarcerated. The
undersigned infers that Defendants' counsel's argument is that perhaps once he was released from
prison Plaintiff should have had an easier time pursuing his claims, and that Defendants' counsel
should not have had the burden of accommodating him, despite his pro se status. It is unclear
where such an argument would come from, but in the view of the undersigned an attorney for any
government, whether federal, state, or municipal, has an obligation not just to the client, but also
to do justice. In this case, that may mean making accommodations for a pro se litigant who has
extremely limited resources. See generally DaCosta v. City of New York, 296 F. Supp. 3d 569,
600 (E.D.N.Y. 2017), reconsideration denied sub nom. DaCosta v. Tranchina, 285 F. Supp. 3d
566 (E.D.N.Y. 2018) ("The rationale underlying the prosecutor's obligation to do justice—her
10

representation 'not of an ordinary party . . . but of a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at all'—applies equally to attorneys who
represent the government in civil disputes. See Freeport–McMoRan Oil & Gas Co. v. F.E.R.C.,
962 F.2d 45, 47 (D.C. Cir. 1992) (holding that the principle in the Supreme Court's Berger [v.
United States, 295 U.S. 78, 88 (1935) ] decision that 'government lawyers have obligations
beyond those of private lawyers ... appl[ies] with equal force to the government's civil
lawyers.').")
Counsel also relies on case law which allows prejudice against a defendant to be
presumed as a result of a plaintiff's "unreasonable delay." Docket # 74 at page 9. In the instant
case, however, the delay was not unreasonable, particularly compared with the cases cited – in
Shannon v. Gen. Elec. Co., 186 F.3d 186 (2d Cir. 1999), Plaintiff had failed to pursue the matter
for over two years, and ten years had passed since the original events; in Webb v. City of New
York, No. 08 Civ. 5145 at *2 (E.D.N.Y. July 23, 2009), in a Report and Recommendation8 which
was subsequently adopted and then subsequently set aside (see Docket Sheet), Magistrate Judge
Orenstein merely quoted the language from Shannon without discussion, but in that case the
plaintiff, by counsel, had failed to effect service or take any other action for a period of eight
months. The circumstances identified in Shannon and Webb are not present here.
The next part of Defendants' argument about prejudice is as follows: "the third factor
weighs heavily in favor of Defendants because it prejudices Defendants to continue to labor on a
8

Since a Report and Recommendation is not a Court's final ruling on a matter,
Defendants' counsel properly cited to the actual decision which adopted the Report and
Recommendation as the opinion of the court; nevertheless, counsel should also have given the
subsequent history that the Judgment of Dismissal was subsequently set aside. See 08cv5145,
Docket ## 5, 6, 10, and 34.
11

case without assurances from Plaintiff that, despite her failure to comply with court orders or
make appearances, she is prepared to move forward with her case." Docket #74 at page 10
(emphasis added). In fact, Mr. Whitley, through his opposition letter, has assured the Court that
he intends to move forward with his case.
For all of these reasons the third factor does not support dismissal of this matter.
Consideration of the fourth factor also does not support dismissal. Defendants' counsel
argues: "a balancing of the court's interest in managing its docket is outweighed by Plaintiff's
interest in receiving a fair chance to be heard." Id. The undersigned presumes that counsel
intended to insert the word "not" before "outweighed," but that argument has no support. This
case is two years old, but the first year of that time was taken up by service of the Complaint and
a Motion to Dismiss, which was only partially successful. Another two months passed before
Defendants filed their Answers. Thus, the case has actually had complete pleadings for eight
months. This does not put it in the category of cases whose age supports dismissal.
Finally, as to the fifth factor, there has been no lesser sanction attempted or considered.
The two decisions quoted by Defendants' counsel with regard to the fifth factor, Ayodele v. N.Y.
Police Dep't., 07cv8573 (S.D.N.Y. Nov. 10, 2008), and Nials v. Bank of Am., N.A., 13cv5720
(S.D.N.Y. Apr. 22, 2015) are actually Reports and Recommendations, using identical language
and written by the same Magistrate Judge, which did not "dismiss[ the] action for failure to
prosecute . . . ," but rather only recommended dismissal. Those recommendations were accepted
by later decisions of the District Judge, which is referenced in the citation to Nials but not in the
citation to Ayodele, and in those later decisions the Reports and Recommendations were adopted
as opinions of the Court. Ayodele involved a plaintiff who could not be located at the only
12

available address, and who failed to cooperate with discovery for a period of three months; the
plaintiff did not respond to the motion to dismiss. Nials involved a failure to respond to
discovery for seven months, as well as a failure to oppose the motion to dismiss. Those failures
were far greater than the circumstance before the undersigned, in which the Plaintiff was
unavailable for three months, but has now communicated with the Court and counsel, and has
opposed the Motion to Dismiss. It is true that Plaintiff, currently incarcerated, is not likely to be
capable of paying any fine or other monetary sanction; no other sanction, for example precluding
certain categories of evidence or permitting certain jury instructions, has been suggested.
Under these circumstances the undersigned finds, and respectfully recommends, that none
of the five factors supports the Defendants' motion for dismissal for failure to prosecute.
CONCLUSION
For the foregoing reasons, I conclude, and respectfully recommend that Your Honor
should conclude, that Defendants' motion to dismiss for failure to prosecute should be denied,
without prejudice in the event of any future failure by Plaintiff to prosecute the action.
The undersigned does suggest to Plaintiff that after he is released from custody he should
find a reliable means of receiving mail from the Court and from Defendants' counsel.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1), as amended, and Fed. R. Civ. P. 72(b), the parties
shall have fourteen (14) days, plus an additional three (3) days, pursuant to Fed. R. Civ. P. 6(d),
or a total of seventeen (17) days, see Fed. R. Civ. P. 6(a), from the date hereof, to file written
objections to this Report and Recommendation. Such objections, if any, shall be filed with the
Clerk of the Court with extra copies delivered to the chambers of The Honorable Kenneth M.
13