Pierre v. State of New York Department of Corrections and Community Supervision et al

Filing 76

DECISION AND ORDER: For the reasons stated in the decision and order, this Court hereby deems the plaintiff's claims abandoned and GRANTS the defendants' motions to dismiss for failure to prosecute, Docket Items 67 and 68 . The Clerk of the Court shall close this case. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 3/8/2025. (CRT)This was mailed to: the plaintiff.Clerk to Follow up

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MARCEL PIERRE,
Plaintiff,
v.

21-CV-163-LJV
DECISION & ORDER

STATE OF NEW YORK DEPARTMENT
OF CORRECTIONS AND COMMUNITY
SUPERVISION, et al.,
Defendants.
On September 26, 2024, the defendants, the State of New York Department of
Corrections and Community Supervision (“DOCCS”), Daniel J. Fahey, Nathan Coffey,
and Shawn Dupuis, moved to dismiss the complaint for failure to prosecute. Docket
Item 67 (Fahey’s motion); Docket Item 68 (DOCCS’s, Coffey’s, and Dupuis’s motion to
dismiss). This Court then issued a scheduling order requiring the pro se plaintiff, Marcel
Pierre, to respond by October 17, 2024. Docket Item 69. Pierre did not do so, and the
scheduling order the Court sent to him was returned as undeliverable. Docket Item 70.
On December 9, 2024, this Court ordered Pierre to show cause “why his claims
should not be deemed abandoned and dismissed” based on his failure to respond to the
defendants’ motions to dismiss. Docket Item 74; see, e.g., Johnson v. Comm’r of Soc.
Sec., 519 F. Supp. 2d 448, 448-49 (S.D.N.Y. 2007) (noting that because plaintiff failed
to respond to motion to dismiss, the Court “may deem [plaintiff’s] claims as
abandoned”); Palmer v. BCE Inc., 2004 WL 1752601, at *2 (W.D.N.Y. Aug. 4, 2004)
(stating that plaintiff’s “failure to respond to defendant’s motion to dismiss evidences his
abandonment of the action”). The Court cautioned that “[i]f Pierre d[id] not respond by”

January 9, 2025, “this Court w[ould] deem his claims abandoned and grant the motions
to dismiss on that basis.” Docket Item 74. The Court also reminded Pierre that pro se
litigants are required to “furnish the Court with a current address at which papers may
be served on the litigant” and that the Court may dismiss the case if a litigant fails to do
so. Id. (quoting Loc. R. Civ. P. 5.2(d)).
Pierre failed to respond to this Court’s order to show cause, and the time to do so
has passed. Further, the order to show cause this Court sent to him was returned as
undeliverable. Docket Item 75. Accordingly, in light of Pierre’s failure to respond or to
comply with Rule 5.2(d), this Court hereby deems Pierre’s claims abandoned and
GRANTS the defendants’ motions to dismiss, Docket Items 67 and 68. The Clerk of the
Court shall close this case.

SO ORDERED.
Dated: March 8, 2025
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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