Sciascia v. Moffee et al

Filing 41

ORDER finding as moot defendants' 31 Motion to Compel; granting defendants' 36 Motion to Dismiss and dismissing the complaint. ***CLERK TO FOLLOW UP. Signed by Hon. David G. Larimer on 8/27/09. (EMA)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK _______________________________________________ SAMUEL SCIASCIA,

Plaintiff, DECISION AND ORDER 06-CV-6344L v. D. MOFFE, T. ERBACH, SGT. EVANS and JOHN DOES 4-10,

Defendants. ________________________________________________

Plaintiff, Samuel Sciascia ("Sciascia") commenced this civil rights action, pro se, when ee was incarcerated with the New York State Department of Corrections. The complaint was filed in July 2006. Plaintiff has now been released from custody. Defendants now move to dismiss the action for failure to prosecute and for failure to comply with several court orders relating to discovery (Dkt. #39). Plaintiff was ordered to Show Cause (Dkt. #40) as to whether plaintiff intended to continue prosecuting the action and the status of plaintiff's compliance with defendants' discovery requests and the Court's prior orders. No written response has been filed. Defendants' motion to dismiss is granted and the complaint is dismissed. The affirmation by the Assistant Attorney General in charge of this case (Dkt. #37) sets forth a lengthy recitation of the many instances when plaintiff failed to cooperate in discovery and failed to comply with court

orders. Even the most basic requirements concerning the signing of medical authorizations was disregarded. In addition, according to the affidavit, plaintiff has indicated on several occasions that he does not intend to participate in the lawsuit and does not wish to pursue the lawsuit. Based on all the reasons advanced in support of the motion to dismiss, I find that plaintiff has failed to comply with court orders, failed to comply with discovery, failed to reasonably prosecute this action and has also indicated on several occasions an intent to abandon this lawsuit.

CONCLUSION For all the above reasons, defendants' motion to dismiss pursuant to FED. R. CIV. P. 41(b) is granted, and the complaint is dismissed. Defendants' motion to compel (Dkt. #31) is denied as moot. IT IS SO ORDERED.

_______________________________________ DAVID G. LARIMER United States District Judge

Dated: Rochester, New York August 27, 2009.

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