Applewhite v. Sheahan et al

Filing 78

-CLERK TO FOLLOW UP-DECISION AND ORDER adopting in part and rejecting in part the Report and Recommendation [Dkt. 77] and dismissing the Complaint with prejudice due to Plaintiff's failure to prosecute. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 7/8/13. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

CHRIS APPLEWHITE,
Plaintiff,
DECISION AND ORDER
No. 6:08-CV-6045(MAT)

-vsCAPTAIN MICHAEL SHEAHAN, et al.,
Defendants.

I.

Introduction
On January 11, 2013, Defendants’ motion for summary judgment

dismissing the pro se complaint filed by Plaintiff was granted in
part and denied in part. (Dkt #64) (Siragusa, D.J.). On February 5,
2013,

Magistrate

Judge

Payson

gave

notice

of

a

scheduling

conference pursuant to Federal Rule of Civil Procedure (“F.R.C.P.”)
16 for April 9, 2013, at which Defendants’ attorney appeared by
telephone. Plaintiff did not appear. (Dkt #73). The conference was
rescheduled for May 14, 2013, and Plaintiff was advised that his
failure to appear would result in the issuance of an Order to Show
Cause

why

the

case

should

not

be

dismissed

for

failure

to

prosecute. On May 14, 2013, Defendants’ attorney appeared by
telephone, but Plaintiff did not appear. (Dkt #75).
On May 15, 2013, Magistrate Judge Payson directed Plaintiff to
show cause in writing why this case should not be dismissed,
pursuant to F.R.C.P. 41(b), based upon his failure to prosecute.
(Dkt #74). Plaintiff was advised that his failure to respond to the

Order

to

Show

recommendation

Cause
of

by

May

dismissal

31,
of

2013,

his

would

complaint

result
with

in

the

prejudice

pursuant to F.R.C.P. 41(b). (Id.). The deadline set forth in
Magistrate Judge Payson’s Order to Show Cause has passed, and
Plaintiff

has

failed

to

respond

to

the

Order

or

otherwise

communicate with the Court.
On June 19, 2013, Magistrate Judge Payson issued a Report and
Recommendation (“the R&R”) (Dkt #77) recommending that Plaintiff’s
Complaint

be

dismissed,

without

prejudice,

pursuant

to

F.R.C.P. 41(b). Also on June 19, 2013, this matter was transferred
to the undersigned. (Dkt #76).
Plaintiff has not filed any objections to the R&R, and the
time to do so has passed. For the reasons that follow, the R&R is
adopted in part and rejected in part.
II.

Standard of Review
Where,

as

here,

no

objection

is

made

to

a

report

and

recommendation, only “clear error” review is required. FED. R. CIV.
P. 72(b), Advisory Committee Notes: 1983 Addition. When performing
such a “clear error” review, “the court need only satisfy itself
that there is no clear error on the face of the record in order to
accept the recommendation.” Id. After conducting the appropriate
review, the district judge may “accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b) (1)(C).

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III. Discussion
Dismissal of a case for failure to prosecute is authorized by
F.R.C.P. 41(b), which provides that the district court may dismiss
an action when the plaintiff fails to comply with the Federal Rules
of Civil Procedure or with any order issued by the court. FED. R.
CIV. P. 41(b); see also Lucas v. Miles, 84 F.3d 532, 534–35 (2d Cir.
1996). Involuntary dismissal under F.R.C.P. 41(b) “is a harsh
sanction and is appropriate only in extreme situations.” Lucas, 84
F.3d at 535 (citing Alvarez v. Simmons Market Research Bureau,
Inc., 839 F.2d 930, 932 (2d Cir. 1988)). The Second Circuit has
cautioned district courts to “be especially hesitant to dismiss for
procedural deficiencies where . . . the failure is by a pro se
litigant.” Id. (citing Minnette v. Time Warner, 997 F.2d 1023, 1027
(2d Cir. 1993)).
The Second Circuit has outlined the factors to be considered
when determining

whether

a

pro

se

litigant’s case

should

dismissed under F.R.C.P. 41(b), none of which is dispositive:
(1) the duration of the plaintiff’s failure to comply
with the court order, (2) whether [the] plaintiff was on
notice that failure to comply would result in dismissal,
(3) whether the defendants are likely to be prejudiced by
further delay in the proceedings, (4) a balancing of the
court’s interest in managing its docket with the
plaintiff’s interest in receiving a fair chance to be
heard, and (5) whether the judge has adequately
considered a sanction less drastic than dismissal.
Lucas, 84 F.3d at 535 (citation omitted).

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be

In examining the “delay” factor, courts consider whether the
failures to prosecute were caused by plaintiff and whether they
were of significant duration. United States ex rel. Drake v. Norden
Systems, Inc., 375 F.3d 248, 255 (2d Cir. 1994). Plaintiff’s
delinquency began over two months ago, on April 9, 2013, when he
failed to appear for a scheduling conference, as to which he had
received notice on February 5, 2013. Plaintiff’s failures to
prosecute have been solely attributable to his own neglect.
With regard to the “notice” factor, Plaintiff has been aware
since April 9, 2013, that his continued absences from required
court

dates

could

result

in

dismissal

of

his

lawsuit

with

prejudice. He was re-advised of this possibility in Magistrate
Judge Payson’s May 15, 2013 Order to Show Cause. There can be no
question that Plaintiff has had adequate notice that his case could
be dismissed due to his inaction. Because Plaintiff was repeatedly
put on notice that his case could be dismissed due to his continued
inaction, this factor strongly weighs in favor of dismissal. See
Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42-43 (2d Cir.
1982) (F.R.C.P. 41(b) dismissal upheld where plaintiff was warned
by opposing counsel and the court that dismissal for failure to
prosecute was possible).
With regard to prejudice, the Court finds it may be presumed
here, since Plaintiff has continued to ignore the Court’s orders
even after being cautioned that he was risking final dismissal of

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his case. Hicks v. Faerichs, No. 03-CV-141S, 2006 WL 211825, at *4
(W.D.N.Y. Jan. 25, 2006) (Arcara, D.J./Schroeder, M.J.) (“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 of dismissal. Id.
The fourth factor requires the district court to consider the
balance between eliminating calendar congestion and the plaintiff’s
right to have his day in court. See Norden Systems, 375 F.3d at
257. Plaintiff’s failure to comply with Magistrate Judge Payson’s
orders to appear certainly wasted of Magistrate Judge Payson’s
calendar time. In addition, Plaintiff’s inaction has caused both
Magistrate Judge Payson to prepare and file multiple scheduling
orders and orders to show cause. See Smith v. Human Resources
Admin. of New York City, No. 91 CIV. 2295(MGC), 2000 WL 307367, at
*3 (S.D.N.Y. Mar. 24, 2000) (“Plaintiff’s repeated last minute
cancellations of scheduled appearances have wasted the time of
counsel for defendants and the court.”). This case has been pending
for over five years, during which time the judges of this Court
have expended many hours conducting discovery and disposing of
motions. Plaintiff’s abandonment of this action means that all of

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this work has been for naught. As the Second Circuit has explained,
“the authority to invoke [dismissal] for failure to prosecute is
vital to the efficient administration of judicial affairs and
provides meaningful access for other prospective litigants to
overcrowded courts.” Lyell Theatre, 682 F.2d at 42.
It bears noting that Plaintiff has been provided numerous
opportunities to comply with orders issued by the Court. His own
failure to litigate this action is not a denial of due process. See
Dodson v. Runyon, 957 F. Supp. 465, 470 (S.D.N.Y. 1997) (stating
that “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”); Hicks, 2006 WL 211825, at
*4 (similar) (citing, inter alia, Feurtado v. City of N.Y., 225
F.R.D. 474, 480 (S.D.N.Y. 2004) (finding that 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.
Finally,

the

Second

Circuit

requires

district

courts

to

consider whether lesser sanctions would sufficiently remedy any
prejudice resulting from the plaintiff’s inaction. Upon reviewing
the entire record in this case, it is this Court’s opinion that
Plaintiff has no intention of complying with any orders issued by
the Court or properly litigating the case which he instituted.
Plaintiff has repeatedly ignored court orders by failing to appear

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and failing to file submissions as directed. This Court finds that
any sanction short of dismissal would be ineffective. See Smith,
2000 WL 307367, at *3 (“[L]esser sanctions are not appropriate in
this case. Court orders and direction have not prompted plaintiff
to move her case forward.”); Alevizopoulos and Assocs., Inc. v.
Comcast Intern. Holdings, Inc., No. 99 Civ. 9311 SAS, 2000 WL
1677984, at *4 (S.D.N.Y. Nov. 8, 2000) (finding lesser sanctions
inappropriate where plaintiff “repeatedly failed to abide by the
Court’s orders, even when the Court has granted him extensions and
second chances”; noting that plaintiff’s “failure to respond to
this motion demonstrates that he has lost interest in this case”)
(citation omitted). Thus, this final factor also weighs in favor of
dismissal.
After considering the required factors, this Court agrees with
Magistrate Judge Payson that dismissal of this case is warranted
under Rule 41(b) for Plaintiff’s failure to prosecute, and adopts
this portion of the R&R.
Although Magistrate Judge Payson indicated in her Order to
Show Cause that she would recommend dismissal with prejudice if
Plaintiff did not timely comply, she nevertheless subsequently
recommended that the action be dismissed without prejudice. On this
record, the Court sees no justification for imposing the lesser
sanction of a dismissal without prejudice. Accordingly, the Court
respectfully declines to adopt that portion of the R&R.

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III. Conclusion
For the foregoing reasons, the R&R (Dkt #77) is adopted in
part and rejected in part. The Complaint (Dkt #1) is dismissed with
prejudice pursuant to F.R.C.P. 41(b) due to Plaintiff’s failure to
prosecute. The Clerk of the Court is directed to close this case.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

July 8, 2013
Rochester, New York

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