Steele v. Fischer et al
DECISION AND ORDER DISMISSING this case with prejudice pursuant to Rules 41(b) of the Federal Rules of Civil Procedure; DIRECTING the Clerk of Court to terminate the pending Motions for Summary Judgment (Docket No. 36, 47) as moot; DIRECTING the Clerk of Court to CLOSE this case.Signed by William M. Skretny, United States District Judge on 10/16/2016. (MEAL) - CLERK TO FOLLOW UP - Copy mailed to Plaintiff.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
GARY RALPH and MID ERIE COUNSELING
AND TREATMENT SERVICES,
In this action, pro se Plaintiff Darnell Steele alleges, pursuant to 42 U.S.C. § 1983,
that Defendants violated his constitutional rights by interfering with his medical treatment
while he was a parolee. Plaintiff has not, however, diligently prosecuted this case, despite
being warned about the consequences of his failure to do so. Consequently, this case will
be dismissed for failure to prosecute and for failure to comply with court orders.
Plaintiff filed his complaint in this action on May 17, 2012. (Docket No. 1.) He
subsequently supplemented his complaint (Docket Nos. 5, 7), which the court deemed part
of the original complaint (Docket No. 8). After engaging in discovery and pretrial motion
practice, Defendant Mid Erie Counseling and Treatment Services (“Mid Erie”) filed a Motion
for Summary Judgment on September 28, 2015. (Docket No. 36.) This Court thereafter
directed Plaintiff to respond to Defendant Mid Erie’s motion by October 29, 2015. (Docket
No. 44.) After this Court’s Order was returned as undeliverable to Plaintiff, this Court sua
sponte extended Plaintiff’s time to respond to December 7, 2015, and sent notice thereof
to the updated address Plaintiff provided to the Clerk of Court. (Docket No. 45.)
In the interim, Defendant Gary Ralph filed a Motion for Summary Judgment on
November 23, 2015. (Docket No. 47.) This Court thereafter set a December 28, 2015
deadline for Plaintiff to respond to both motions for summary judgment. (Docket No. 48.)
Plaintiff failed to file responses as directed, prompting this Court to again sua sponte
extend his time to respond, this time to February 1, 2016. (Docket No. 50.) Plaintiff again
failed to respond as directed.
Consequently, on February 29, 2016, this Court issued a Decision and Order setting
a final March 31, 2016 deadline for Plaintiff’s responses and warning Plaintiff that his
continued failure to respond could result in this Court granting Defendants’ motions as
uncontested or dismissing Plaintiff’s case for failure to prosecute. (Docket No. 51.) In the
almost seven months that have passed since the entry of that Decision and Order, Plaintiff
has failed to respond to either motion for summary judgment or have any contact with the
Dismissal under Rule 41(b) For Failure to Prosecute
Dismissal of this case is warranted pursuant to Rule 41(b) of the Federal Rules of
Civil Procedure, which provides that:
[f]or failure of the plaintiff to prosecute or to comply with these
rules or any order of court, a defendant may move for
dismissal of an action or of any claim against the defendant.
Unless the court in its order for dismissal otherwise specifies,
a dismissal under this subdivision and any dismissal not
provided for in this rule, other than a dismissal for lack of
jurisdiction, for improper venue, or for failure to join a party
under Rule 19, operates as an adjudication upon the merits.
FED. R. CIV. P. 41(b).
Rule 41(b) does not define failure to prosecute. But the Second Circuit has stated
that failure to prosecute “can evidence itself either in an action lying dormant with no
significant activity to move it or in a pattern of dilatory tactics.” Lyell Theatre Corp. v.
Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982). Dismissal pursuant to Rule 41(b) falls within
the court’s discretion. See id. at 42-43 (“the scope of review of an order of dismissal is
confined solely to whether the trial court has exercised its inherent power to manage its
affairs within the permissible range of its discretion”). It is, however, “a harsh remedy to
be utilized only in extreme situations.” Harding v. Fed. Reserve Bank, 707 F.2d 46, 50 (2d
Cir. 1983) (quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972) (per
curiam); see also Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir. 1980)
(discussing the sanction of dismissal for failure to prosecute as “pungent, rarely used, and
conclusive”). This is particularly true in cases involving pro se plaintiffs, where dismissal
for failure to prosecute should be granted only “when the circumstances are sufficiently
extreme.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (citing Nita v. Connecticut Dep’t
of Envtl. Prot., 16 F.3d 482, 487 (2d Cir. 1994)).
The following factors, none of which are dispositive, must be considered in
determining whether dismissal for failure to prosecute is warranted: (1) the duration of the
plaintiff’s failures; (2) whether the plaintiff received notice that further delays would result
in dismissal; (3) whether the defendant is likely to be prejudiced by further delay; (4)
whether an appropriate balance has been struck between alleviating the court’s calendar
congestion and protecting the litigants’ due process rights; and (5) whether lesser
sanctions would be appropriate. See United States ex rel. Drake v. Norden Sys., Inc., 375
F.3d 248, 255 (2d Cir. 2004); Nita, 16 F.3d at 485; Feurtado v. City of New York, 225
F.R.D. 474, 477 (S.D.N.Y. 2004) (quoting Jackson v. City of New York, 22 F.3d 71, 74 (2d
Cir. 1994)). In the present case, these factors weigh in favor of dismissal.
Duration of Failures
The relevant inquiry on this factor is twofold: (1) whether the plaintiff is at fault for
failing to prosecute, and (2) whether the plaintiff’s failures were of significant duration. See
Norden Sys., 375 F.3d at 255.
In this case, Plaintiff is solely at fault for failing to prosecute: he has, without
explanation, failed to comply with this Court’s scheduling orders, failed to file responses
to Defendants’ motions, and failed to have any contact whatsoever with the court for seven
With respect to duration, Plaintiff’s inaction has caused unnecessary delay of
approximately one year since the September 29, 2015 filing of Mid Erie’s Motion for
This is a failure of significant duration.
See Antonios A.
Alevizopoulos & Assoc., Inc. v. Comcast Int’l Holdings, Inc., No. 99 Civ. 9311, 2000 WL
1677984, at *2 (S.D.N.Y. Nov. 8, 2000) (finding that delay of four months warranted
Thus, this Court finds that this factor weighs in favor of dismissal—all delay is
attributable to Plaintiff and is of significant duration.
Notice of Dismissal
The Second Circuit requires that the plaintiff receive adequate notice that his case
could be dismissed due to inaction. See Martens v. Thomann, 273 F.3d 159, 180-81 (2d
Cir. 2001). In the present case, there can be no question that Plaintiff had adequate
notice. This Court explicitly and directly warned Plaintiff that his failure to comply with the
court’s directives could lead to his case being dismissed. (Docket No. 51.) It also warned
him that the March 31, 2016 was a final extension. (See Docket No. 51 (indicating that the
Decision and Order sets forth “a final schedule”.) Because Plaintiff was on adequate
notice that his case could be dismissed, this factor strongly weighs in favor of dismissal.
See Lyell Theatre, 682 F.2d at 42-43 (Rule 41(b) dismissal upheld where plaintiff was
warned that dismissal for failure to prosecute was possible).
Prejudice to Defendants
The third factor requires an inquiry into whether the defendant has been prejudiced
by the plaintiff’s inaction. “Prejudice to defendants resulting from unreasonable delay may
be presumed, but in cases where delay is more moderate or excusable, the need to show
actual prejudice is proportionately greater.” Lyell Theatre, 682 F.2d at 43 (citations
omitted). In Lyell Theatre, the court presumed prejudice where the plaintiff on numerous
occasions failed to file documents as directed by the court. Id. at 39-40, 43. Similar to the
present case, the plaintiff in Lyell Theatre continued to ignore the court’s orders even after
he had been warned that he was risking dismissal. Id. at 39. Under Lyell Theatre, the
prejudice to Defendants in this case may be presumed. Thus, this factor weighs in favor
Balance between Calendar Congestion and Due Process Rights
The fourth factor requires the court to consider the balance between calendar
congestion and the plaintiff’s right to present his or her case. See Norden Sys., 375 F.3d
at 257. In this regard, “‘a court must not let its zeal for a tidy calendar overcome its duty
to justice.’” Feurtado, 225 F.R.D. at 480 (quoting Davis v. United Fruit Co., 402 F.2d 328,
331 (2d Cir. 1968)). Plaintiff’s inaction has caused this Court to prepare and file several
scheduling orders. Although this expenditure of judicial resources is wasteful, this Court
cannot conclude that the overall effect on docket congestion has been significant.
This Court notes that Plaintiff has been afforded Due Process rights in that he has
been provided numerous opportunities to comply with this Court’s Orders. Thus, Plaintiff’s
own failure to litigate this matter is not a denial of Due Process. See Dodson v. Runyon,
957 F.Supp. 465, 470 (S.D.N.Y. 1997) (“any claim that plaintiff’s due process rights were
violated thus cannot prevail because the delay and resultant dismissal of plaintiff’s case
are of his own making”); cf. Feurtado, 225 F.R.D. at 480 (repeated failure to comply with
court orders diminishes a plaintiff’s right to present his claims). Accordingly, this factor also
weighs in favor of dismissal.
Consideration of Lesser Sanctions
Finally, the Second Circuit requires district courts to consider whether lesser
sanctions would sufficiently remedy any prejudice resulting from the plaintiff’s inaction.
See Norden Sys., 375 F.3d at 257. Upon reviewing the entire record, it is this Court’s
opinion that Plaintiff has no intention of complying with this Court’s Orders or properly
litigating this case. Plaintiff has repeatedly ignored directives to respond to Defendants’
motions and diligently prosecute this case. Given the history of this case, this Court finds
that any sanction short of dismissal would be ineffective. See Smith v. Human Res.
Admin. of New York City, 2000 WL 307367, at *3 (S.D.N.Y. Mar. 24, 2000) (finding lesser
sanctions inappropriate where past court orders did not motivate the plaintiff to move the
case forward); Alevizopoulos, 2000 WL 1677984, at 4 (finding lesser sanctions
inappropriate based on repeated failures to comply with court orders). Thus, this final
factor also weighs in favor of dismissal.
Accordingly, this Court finds that dismissal of this case is warranted under Rule
41(b) for Plaintiff’s failure to prosecute.
Mindful of the fact that cases brought by pro se plaintiffs should not readily be
dismissed for procedural deficiencies, this Court concludes that Plaintiff’s failures in this
case go beyond procedural deficiencies and constitute actual neglect. Plaintiff has failed
to diligently prosecute this action, and he has failed to comply with orders of this Court. As
such, because each of the factors relevant to the Rule 41(b) analysis favor dismissal, this
Court will dismiss this case with prejudice.
IT HEREBY IS ORDERED, that this case is dismissed with prejudice pursuant to
Rules 41(b) of the Federal Rules of Civil Procedure.
FURTHER, that the Clerk of Court is directed to terminate the pending Motions for
Summary Judgment (Docket No. 36, 47) as moot.
FURTHER, that the Clerk of Court is directed to CLOSE this case.
October 16, 2016
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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