Reid v. Napoli et al

Filing 27

-CLERK TO FOLLOW UP-ORDER granting 23 Motion to Dismiss for Lack of Prosecution. Signed by Hon. H. Kenneth Schroeder, Jr on 10/2/2014. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

CEDRIC REID,
Plaintiff,
-vs-

12-CV-393

D. NAPOLI, et al.,
Defendants.

DECISION AND 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. #19.

Plaintiff, a former inmate in the care and custody of the New York State
Department of Corrections and Community Services (“NYSDOCCS”), commenced this
action pursuant to 42 U.S.C. § 1983 on or about May 2, 2012, alleging various
violations of his constitutional rights by officials at the Southport Correctional Facility
and Elmira Correctional Facility. Dkt. #1.

By Order entered July 22, 2013, the Court scheduled a preliminary pretrial
conference on August 20, 2013. Dkt. #15. The Order advised plaintiff, inter alia, that
failure to respond to this order or to otherwise comply with
the Federal Rules of Civil Procedure or any other order of
this Court may result in a dismissal of this action on the
merits. It is the plaintiff’s responsibility to keep the Court
informed of his/her current address.

Dkt. #15, pp.2-3. The conference was conducted by telephone as scheduled, resulting
in the issuance of a Case Management Order setting July 31, 2014 as the deadline for
completion of fact depositions, directing plaintiff to submit a written settlement demand
to defendants’ counsel no later than August 8, 2014; and scheduling a telephone
settlement conference on September 8, 2014. Dkt. #17.

On July 3, 2014, the Assistant Attorney General (“AAG”), served plaintiff
with a Notice to Take Deposition. Dkt. #22. The deposition notice was returned to the
AAG with the following notation: Released - no forwarding Address on file” Dkt. #24,
p.11.

A motion to dismiss for lack of prosecution was filed on July 23, 2014.
Dkt. #23. The text order scheduling the motion was returned to the Court on August 6,
2014 with the following notation: Released - no forwarding Address on file.”

NYSDOCCS Inmate Locator indicates that plaintiff was released from
NYSDOCCS custody on March 1, 2014. See http://nysdoccslookup.doccs.gov.

DISCUSSION AND ANALYSIS
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.

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However, the Court of Appeals for the Second Circuit has required district courts to
afford pro se plaintiffs “special leniency regarding procedural matters” and “has
repeatedly detailed factors . . . to be considered before dismissal for failure to comply
with a court order.” LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir.
2001). “[T]hese factors significantly cabin a district court’s discretion under Rule 41(b),
so that deference is due to the district court’s decision to dismiss a pro se litigant’s
complaint only when the circumstances are sufficiently extreme.” Id. (internal quotation
omitted). As a result, a district court contemplating dismissing a plaintiff’s case for
failure to prosecute must consider: (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
taken care to strike 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. See Lewis v.
Rawson, 564 F.3d 569, 576 (2d Cir. 2009); United States ex rel. Drake v. Norden Sys.,
Inc., 375 F.3d 248, 254 (2d Cir. 2004); LeSane, 239 F.3d at 209.

Plaintiff has had no communication with the Court since the preliminary
pretrial conference on August 20, 2013. Despite receipt of an Order advising plaintiff
that of his responsibility to keep the Court informed of his current address and warning
him that his failure to comply with an Order of the Court could result in dismissal of his
case, plaintiff failed to provide the Court with an address following his release from
incarceration; failed to provide the AAG with a written settlement demand as provided in

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the Case Management Order, and failed to appear for the settlement conference
scheduled during the preliminary pretrial conference and set forth in the Case
Management Order. As a result, the Court can only conclude that plaintiff has lost
interest in the prosecution of this action.

To hold this action in abeyance until plaintiff deigns to contact the Court
would undermine the Court’s ability to manage its caseload and prejudice defendants’
interest in resolving the allegations against them. The Court cannot fathom any lesser
sanction than dismissal which could preserve the integrity of the Court’s authority over
indigent, pro se litigants such as plaintiff. To permit plaintiff’s case to be held in
abeyance until such time as plaintiff re-establishes contact with the Court would
eviscerate the semblance of any procedural standards for pro se plaintiffs.

CONCLUSION
Based on the foregoing, this matter is dismissed with prejudice pursuant
to Fed.R.Civ.P. 41(b).

SO ORDERED.
DATED:

Buffalo, New York
October 2, 2014

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

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