Haslinger v. Westchester County et al

Filing 54

ORDER TO SHOW CAUSE terminating 48 Motion to Dismiss. Accordingly, it is hereby ORDERED that Plaintiff show cause in writing on or before November 5, 2021, why this action should not be dismissed without prejudice for want of prosecution pursuant t o Fed R. Civ. P. 41(b). Failure to comply with this Courts present order will result in dismissal of this case for want of prosecution. Separately, in light of this Order to Show Cause, the Court denies the motion at ECF No. 48 as moot. To the extent that Plaintiff responds to the Order to Show Cause, Defendants Westchester County, Law Librarian K. Hewitt, and Westchester County DOC Commissioner Spano will be granted leave to refile their motion to dismiss and the Court will establish a briefing schedule for Plaintiff to respond. The Clerk of the Court is directed to terminate the Motion at ECF No. 48. The Clerk of the Court is further directed to mail a copy of this Order to Plaintiff at his address on the docket and show proof of service on the docket. The Clerk of the Court is also directed to mail a copy of this Order to the following address and show proof of service on the docket: Kenneth K. Haslinger, Plaintiff, Pro Se c/o Jessica Cooper, 181 Forest Avenue, Yonkers, NY 10705. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 10/4/2021) (mml) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KENNETH K. HASLINGER,
Plaintiff,
-against-

10/4/2021

18-CV-5413 (NSR)
ORDER TO SHOW CAUSE

ARAMARK CORRECTIONAL SERVICES, et al.,
Defendants.
NELSON S. ROMÁN, United States District Judge
Plaintiff Kenneth Haslinger (“Plaintiff”) commenced this action on June 14, 2018 under the
42 U.S.C. § 1983 (“Section 1983”) asserting claims against Aramark Correctional Services,
Manual Mendoza, Darnell Flax, Westchester County, Law Librarian K. Hewitt, and Westchester
DOC Commissioner Spano in connection with, among other things, food related issues he
experienced as a pre-trial detainee at Westchester County Jail. (See Complaint (ECF No. 2).) On
September 9, 2020, this Court granted the motion to dismiss of Aramark Correctional Services,
Manual Mendoza, and Darnell Flax. (ECF No. 44.) Later, Defendants Westchester County, Law
Librarian K. Hewitt, and Westchester County DOC Commissioner Spano attempted to serve their
motion to dismiss moving papers on Plaintiff and the it was returned in the mail as undeliverable.
(ECF No. 46.) The Court ordered those Defendants to engage in a good faith effort to identify
Plaintiff’s new address by, among other things, consulting databases identifying the whereabouts of
inmates in correctional facilities. (ECF No. 47.) After engaging in such efforts, Defendants confirmed
that Plaintiff does in fact live at the address listed on ECF and once again mailed their motion to
dismiss papers to him. (ECF No. 52.) Despite repeated mailings to his address, Plaintiff has taken no

action in this matter since advising the Court of his change in address on September 11, 2019. (ECF
No. 29.
Under Rule 41(b) of the Federal Rules of Civil Procedure, “If the plaintiff fails to prosecute . . .
a defendant may move to dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). “Dismissal
for want of prosecution is a matter committed to the discretion of the trial judge.” Peart v. City of New
York, 992 F.2d 458, 461 (2d Cir. 1993) (internal quotation marks omitted). This discretion, however,
“is conditioned by certain minimal requirements.” Id. (internal quotation marks omitted). In particular,
the Court should consider:
(1) the duration of plaintiff's failures; (2) whether plaintiff had received notice that further
delays would result in dismissal; (3) whether defendant is likely to be prejudiced by
further delay; (4) whether the district judge has carefully balanced the need to alleviate
court calendar congestion and a party’s right to due process; and (5) whether the court
has assessed the efficacy of lesser sanctions.
Id. (internal quotation marks omitted).
Here, Plaintiff has not taken any steps to advance this action for over two years. Plaintiff has
also failed to respond to dispositive motions filed by Defendants. Moreover, Plaintiff’s failure to
prosecute this action has impeded the Court’s efforts to “avoid calendar congestion and ensure an
orderly and expeditious disposition of cases.” Cortez v. Suffolk Cty. Corr. Facility, No. 15-CV-1957
(JFB) (AKT), 2016 WL 6302088, at *2 (E.D.N.Y. Oct. 25, 2016).
Accordingly, it is hereby ORDERED that Plaintiff show cause in writing on or before
November 5, 2021, why this action should not be dismissed without prejudice for want of prosecution
pursuant to Fed R. Civ. P. 41(b). Failure to comply with this Court’s present order will result in
dismissal of this case for want of prosecution. Separately, in light of this Order to Show Cause, the
Court denies the motion at ECF No. 48 as moot. To the extent that Plaintiff responds to the Order to
Show Cause, Defendants Westchester County, Law Librarian K. Hewitt, and Westchester County
DOC Commissioner Spano will be granted leave to refile their motion to dismiss and the Court will
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establish a briefing schedule for Plaintiff to respond. The Clerk of the Court is directed to terminate
the Motion at ECF No. 48. The Clerk of the Court is further directed to mail a copy of this Order to
Plaintiff at his address on the docket and show proof of service on the docket. The Clerk of the Court
is also directed to mail a copy of this Order to the following address and show proof of service on the
docket:
Kenneth K. Haslinger
Plaintiff, Pro Se
c/o Jessica Cooper
181 Forest Avenue
Yonkers, NY 10705

Dated:

October 4, 2021
White Plains, New York

SO ORDERED:
________________________________
NELSON S. ROMÁN
United States District Judge

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