Butler v. New York State Department of D.O.C.
Filing
82
DECISION AND ORDER dismissing the action. Signed by Hon. Michael A. Telesca on 5/2/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KEITH TERRELL BUTLER,
DECISION AND ORDER
No. 08-CV-6385(MAT)
Plaintiff,
-vsJAMES CONWAY, RICK WOODS, CAPTAIN
ROBINSON, LIEUTENANT W. MURRAY,
LIEUTENANT T. DIXON, LIEUTENANT
BORAWSKI, G.B. KRAZIK, STEVE BULLIS, LT.
JAN VANN, C.O. W. SKELLY, C.O. T.
HARRIS, C.O. J. SMITH, SERGEANT GARY C.
BELTZ, RN J. JILSON, RN J. CLEMENS,
NURSE ADMINISTRATOR C. FELKER, MAIL
SUPERVISOR K. WASHBURN, I.G.P.
SUPERVISOR B. ABRUNZO, D.O.C.S.
COMMANDING CHIEF LIABLE BRIAN FISCHER,
ACTING SUPERINTENDENT M. SHEAHAN,
Defendants.
I.
Introduction
Pro
se
plaintiff
Keith
Terrell
Butler
(“Butler”
or
“Plaintiff”) commenced this action pursuant to 42 U.S.C. § 1983
while he was an inmate in the custody of New York State Department
of Corrections and Community Supervision (“DOCCS”), asserting that
Defendants violated his constitutional rights in various ways while
he
was
housed
at
Attica
Correctional
Facility,
Upstate
Correctional Facility, and Southport Correctional Facility. The
matter was transferred to the undersigned, who issued a Decision
and Order on April 3, 2013, granting partial summary judgment in
favor of Defendants. The copies of this Decision and Order and the
transfer order sent to Plaintiff at his last known address were
returned as undeliverable to this Court.
For the reasons discussed below, the Court exercises its
authority to sua sponte dismiss this matter based upon Plaintiff’s
failure to prosecute and to comply with the rule requiring a pro se
litigant to keep the Court apprised of a current address where he
may receive mail.
II.
Background
When Plaintiff filed the instant action on August 11, 2008, he
was housed at Attica Correctional Facility. (Dkt #1). Based upon a
review of the docket, it appears that Plaintiff moved to Auburn
Correctional Facility, Southport Correctional Facility, Elmira
Correctional Facility, Clinton Correctional Facility, Great Meadow
Correctional
Facility,
and,
finally,
Southport
Correctional
Facility.
A copy of the text order transferring the case (Dkt #80) to
the undersigned was sent to Plaintiff at Five Points Correctional
Facility on March 14, 2013. On April 3, 2013, a copy of this
Court’s Decision and Order (Dkt #81) also was sent to Plaintiff at
Five
Points.
Dkt
#80
was
returned
to
the
Clerk’s
Office
as
undeliverable on April 23, 2013, and on April 29, 2013, Dkt #81
likewise was returned as undeliverable.
A search of the Inmate Information Database maintained by
DOCCS reveals that Butler was released to parole supervision on
-2-
March 7, 2012.1 However, the latest docket entry indicating a
change
of
address
notice
received
from
Plaintiff
was
on
December 16, 2011, in which the Clerk’s Office noted that “pltf
address updated from Medford NY to Five Points CF.”
III. Discussion
Plaintiff’s failure to apprise the Court of his release from
a DOCCS’ facility and his new address constitutes a violation of
the
procedural
rules
for
the
Western
District
of
New
York
(“W.D.N.Y.”)–namely, Local Rule (“L.R.”) 5.2(d) which provides that
a “party appearing pro se must furnish the Court with a current
address at which papers may be served on the litigant.” W.D.N.Y.
L.R. 5.2(d). This rule further requires that “the Court must have
a current address at all times.” Id. Thus, “a pro se litigant must
inform the Court immediately in writing of any change of address.
Failure
to
do
so
may
result
in
dismissal
of
the
case
with
prejudice.” Id.
As other federal courts have noted, “‘[i]t is neither feasible
nor legally
undertake
required
that
independently
to
the
clerks
maintain
of
the
current
district
addresses
courts
on
all
parties to pending actions.” Dansby v. Albany Cty Corr. Facility,
No. 95-CV-1525, 1996 WL 172699, at *1 (N.D.N.Y. Apr. 10, 1996)
(quoting Perkins v. King, No. 84-3310, slip op. at 4 (5th Cir.
1
http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ2/WINQ120 (last
accessed May 1, 2013).
-3-
May 19, 1985) and citing, inter alia, Williams v. New Orleans
Public Service, Inc., 728 F.2d 730 (5th Cir. 1984); Wilson v.
Atwood Group, 725 F.2d 255 (5th Cir. 1984) (en banc)).
Rule 41(b) of the Federal Rules of Civil Procedure provides
that a district court may, in its discretion, dismiss an action
based upon a plaintiff’s failure to prosecute an action or comply
with any order of the Court. Link v. Wabash R.R. County Independent
School Dist., 370 U.S. 626 (1962). The Second Circuit “review[s]
district court decisions to dismiss a case under this rule for
abuse of discretion only[.]” LeSane v. Hall’s Sec. Analyst, Inc.,
239 F.3d 206, 209 (2d Cir. 2001)
(citing Romandette v. Weetabix
Co., 807 F.2d 309, 312 (2d Cir. 1986)).
Although the Second
Circuit has cautioned that “a Rule 41(b) dismissal remains a harsh
remedy to be utilized only in extreme situations[,]” LeSane, 239
F.3d
at
209
(internal
quotations
omitted),
this
sanction
is
necessary to allow courts “to clear their calendars of cases that
have remained dormant because of the inaction or dilatoriness of
the parties seeking relief.” Link, 370 U.S. at 630. Accord, e.g.,
Fusco v. Craig, No. 9:05-CV-1425 (FJS/DEP), 2006 WL 3761984, at *1
(N.D.N.Y.
Dec.
20,
2006)
(citing
Rodriguez
v.
Walsh,
No. 92-Civ-3398, 1994 WL 9688, at *1 (S.D.N.Y. Jan. 14, 1994)
(citing Peart v. City of New York, 992 F.2d 458, 461 (2d Cir. 1993)
(affirming
dismissal
with
prejudice
where
plaintiff’s
counsel
failed to comply with two court orders and otherwise demonstrated
-4-
a lack of respect for the court); Ali v. A & G Co., 542 F.2d 595,
596 (2d Cir. 1976) (Where plaintiffs’ counsel did not inform court
of defendants’ failure to submit discovery until eve of date set
for trial, long after date by which discovery was supposed to have
been completed, and plaintiffs and attorney had not arranged their
affairs so as to be available for trial date which was known well
in advance, dismissal for want of prosecution was not an abuse of
discretion)).
In determining whether involuntary dismissal under Rule 41(b)
is appropriate, the Second Circuit considers five main factors,
none of which is dispositive: “(1) the duration of the plaintiff’s
failures; (2) whether the 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.” Shannon v. General Elec. Co., 186 F.3d 186,
193-94 (2d Cir. 1999) (quotation omitted); accord, e.g., LeSane,
239 F.3d at 209-10.
Since
his
release
to
parole
supervision
in
March
2012,
Plaintiff has had over one year to update the Court of his new
address, which is more than ample time to fulfill his obligation
-5-
under Local Rule 5.2(d). The Second Circuit has emphasized the
importance of first giving the pro se litigant a direct warning
that his case will be dismissed for failure to prosecute. E.g.,
Drake v. Norden Sys. Inc., 375 F.3d 248, 251 (2d Cir. 2004).
However, any further attempts to notify Plaintiff would be futile
as the Court has no means by which to get in contact with him.
Reynoso v. Selsky, No. 02–CV–6318 CJS, 2011 WL 3322414, at *3
(W.D.N.Y. Aug. 2, 2011) (declining, on grounds of futility, to
issue show-cause order directing plaintiff to explain why this
matter should not be dismissed for failure to prosecute where
plaintiff had not been at his last known address for over a year).
Moreover, the fact that Plaintiff consistently notified the Court
of his previous address changes strongly suggests he was aware of
his obligations under Local Rule 5.2(d). Id. (citing Fenza v.
Conklin,
177
F.R.D.
126,
127
(N.D.N.Y.
1998)
(stating
that
plaintiff was “clearly aware” of requirement to inform the Court of
a change in address, having done so twice before)).
With respect to prejudice, Plaintiff’s failure to update his
address is effectively foreclosing Defendants’ efforts to defend
this lawsuit.
Finally, the need to eliminate the court calendar
congestion and availability of lesser sanctions both weigh in favor
of dismissal. The inability of the Court and Defendants’ counsel to
communicate with Plaintiff means that “the matter will remain
pending indefinitely without the possibility of resolution. Under
the circumstances of this case, sanctions short of dismissal would
-6-
obviously be meaningless.” Reynoso v. Selsky, 2011 WL 3322414, at
*4.
Plaintiff’s failure to update his address is no small matter,
as it prevents the Court from being able to correspond with him
regarding his lawsuit. Plaintiff’s decision not to comply with
Local Rule 5.2(d) conveys the message that he no longer wishes to
pursue his claims against Defendants.
IV.
Conclusion
For
the
reasons
discussed
above,
the
instant
action
is
dismissed pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure, based upon Plaintiff's failure to prosecute this action;
and Rule 5.2(d) of the Western District of New York’s Local Rules
of Civil Procedure, based upon his failure to advise the Court of
a current address. Plaintiff’s second amended complaint (Dkt #76)
is dismissed with prejudice.
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a),
that any appeal from this Decision and Order would not be taken in
good faith and leave to appeal to the Court of Appeals as a poor
person is denied. The Clerk of the Court is requested to close this
case.
IT IS SO ORDERED.
S/Michael A. Telesca
___________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
Rochester, New York
May 2, 2013
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