Fernandez v. Callens et al

Filing 57

ORDER dismissing action with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The Clerk of the Court is directed to take the necessary steps to close this case. Signed by Hon. H. Kenneth Schroeder, Jr on 5/13/2011. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

FRANCISCO FERNANDEZ,
Plaintiff,
-v-

06-CV-0506(Sr)

CORRECTIONS OFFICER J. CALLENS,
et al.,
Defendants,

ORDER
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the
assignment of this case to the undersigned to conduct all proceedings in this case,
including the entry of final judgment. Dkt. #21.

By Decision and Order entered October 29, 2010, this Court granted in
part, and denied in part, defendants’ motion for summary judgment. Dkt. #51. On the
same date, the Court issued a Text Order setting a telephone status conference for
November 12, 2010. Dkt. #52. The Court ordered a telephone conference because
plaintiff is currently residing in the Dominican Republic. Plaintiff did not provide the
Court with a telephone number at which he could be reached and did not appear or
otherwise contact the Court with respect to the status conference. As a result, the
Court issued an Order to Show Cause why this matter should not be dismissed for failure
to prosecute pursuant to Fed. R. Civ. P. 41(b) and warned plaintiff that his failure to
comply with this Order would result in the dismissal of this action with prejudice. Dkt. #53.

Plaintiff responded to the Order to Show Cause by letter dated January 12,
2011 indicating his willingness to pursue this action but expressing concern as to “how that
would happen” given his residence in the Dominican Republic. Dkt. #54. Plaintiff
requested appointment of counsel to advise him how to proceed. Dkt. #54.

The Court advised plaintiff that he would need to return to the W estern
District of New York for trial and that, although the Court was willing to be flexible with
respect to the scheduling of the trial, it could not be postponed indefinitely. Dkt. #55.
Plaintiff was directed to provide the Court with proposed dates for his return within 60 days
of the entry of this Order or, if he had been deported, to apply for permission to reapply for
admission to the United States by filing Form I-212 with the Attorney General in
accordance with 8 C.F.R. § 212.2, and provide the Court with a copy of that application
within 60 days. Dkt. #55. Plaintiff was warned that his failure to make provisions for his
return to this district for trial would result in the dismissal of his complaint pursuant to Rule
41(b) of the Federal Rules of Civil Procedure. Dkt. #55. This Order, which was mailed to
the address provided by plaintiff on February 9, 2011, was twice returned as undeliverable.

Rule 41(b) of the Federal Rules of Civil Procedure provides that
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.
As dismissal for failure to prosecute is a harsh remedy, courts must consider 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 a fair day in court; and (5) the trial court
adequately assessed the efficacy of lesser sanctions. U.S. ex rel. Drake v. Norden
Systems, Inc., 375 F.3d 248, 254 (2d Cir. 2004).

In the instant case, this matter has been ready for trial since the Court’s
Decision and Order partially denying defendants’ motion for summary judgment. Dkt. #51.
However, a trial date cannot be set until it is determined whether plaintiff can legally
reenter the United States and if plaintiff has the resources to return to the United States
District Court for the W estern District of New York. The Court attempted to provide
plaintiff notice of its intent to dismiss the case unless plaintiff advised of his availability for
trial, but its correspondence was twice returned as undeliverable. As set forth in Rule

5.2(d) of the Local Rules of Civil Procedure:
A party appearing pro se must furnish the Court with a
current address at which papers may be served on the
litigant. Papers sent to this address will be assumed to have
been received by plaintiff.
In addition, the Court must have a current address at all
times. Thus, a pro se litigant must inform the Court
immediately in writing of any change of address. Failure to
do so may result in dismissal of the case with prejudice.
Plaintiff was reminded of his obligation to inform the Court of his current address in the
Case Management Order. Dkt. #23.

As the surviving claim in this action involves allegations of excessive force
by corrections officers Callens and Czarnecki against plaintiff on August 9, 2004, the time
is well past for the Court to be concerned that defendants will be prejudiced by failing
memories of witnesses. Moreover, given the ongoing difficulties of corresponding with

plaintiff in the Dominican Republic and concerns about plaintiff’s ability to return to the
United States from the Dominican Republic for trial, it does not appear that any sanction
other than dismissal is feasible. The Court cannot be expected to maintain this matter on
its calendar of cases ready for trial for an indefinite period of time or to make continuous
attempts to discern plaintiff’s ability to appear for trial.

Therefore, it is hereby ORDERED that this action be dismissed with
prejudice pursuant to Fed. R. Civ. P. 41(b). The Clerk of the Court is directed to take the
necessary steps to close this case.

SO ORDERED.

DATED:

Buffalo, New York
May 13, 2011

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge