Ruiz v. Westchester County DOC et al

Filing 45

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 pr osecute 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 W L 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 plain tiffs 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). The Clerk of Court is directed to mail a copy of this Order to Plaintiff. SO ORDERED. (Signed by Judge Kenneth M. Karas on 10/19/2020) (jca) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

JORDAN I. RUIZ,
Plaintiff,
No. 18-CV-7007 (KMK)
v.
ORDER OF DISMISSAL
WESTCHESTER COUNTY DOC, et al.,
Defendants.

KENNETH M. KARAS, United States District Judge:
On September 10, 2020, the Court issued an Order To Show Cause, directing Plaintiff to
file an Amended Complaint or show cause as to why the case should not be dismissed for failure
to state a claim by no later than October 13, 2020. (Dkt. No. 44.) On September 11, 2020, the
Clerk of the Court mailed a copy of the Order to Plaintiff at the address provided to the Court
and listed on the docket sheet: 02360544H, Anna M. Kross Center (AMKC), 18-18 Hazen Street,
East Elmhurst, NY 11370. (See Dkt. (entry for Sep. 11, 2020).) The mail was returned to the
Clerk of the Court as undeliverable for the following reasons: “Return To Sender Not
Deliverable As Addressed Unable To Forward, RTS, Disc.” (See Dkt. (entry for Sep. 21, 2020).)
Plaintiff was advised of his obligation to promptly submit a written notification to the Court in
the event that her address changed, and that failure to do so may result in dismissal of the case.
(See Dkt. No. 6 ("Plaintiff must notify the Court in writing if his address changes, and the Court
may dismiss the action if Plaintiff fails to do so.").) Plaintiff has not filed an Amended
Complaint and has not otherwise communicated with the Court since sending a letter dated May
15, 2020. (See Dkt. No. 41.)

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
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.
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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
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 has not communicated with the Court since his letter dated May 15, 2020—more than
five months. (See Dkt. No. 41.) Prior to this letter, and despite sending two earlier letters
requesting appointment of counsel, (see Dkt. Nos. 35, 39), Plaintiff did not oppose Defendants’
February 7, 2020 Motion To Dismiss, (Dkt. No. 31), which the Court deemed fully submitted on
April 14, 2020, (Dkt. No. 38). The Clerk of the Court mailed Plaintiff a copy of the Court’s July
28, 2020 Opinion & Order dismissing his Second Amended Complaint without prejudice and
ordering him to submit a third amended complaint within 30 days. (Dkt. No. 43; Dkt. (entry for
July 28, 2020).) Since this Order was not returned, Plaintiff appears to have been aware of the
need to amend his complaint, which he has already done two times. (See Dkt. Nos. 10, 27.)
Further, Plaintiff has on four occasions provided a new address to the Court, (see Dkt. Nos. 9,
11, 14, 18), suggesting that he was aware that a failure to update his address could result in
dismissal, (see Dkt. No. 6).
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
3

*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).
The Clerk of Court is directed to mail a copy of this Order to Plaintiff.
SO ORDERED.
Dated: October 19, 2020
White Plains, New York
________________________________
KENNETH M. KARAS
UNITED STATES DISTRICT JUDGE

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