Gomez-Ka'Dawid v. Eagen et al

Filing 44

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 41 Motion to Dismiss and dismissing the complaint. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 3/15/13. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

YAHKIMA GOMEZ-KA’DAWID,
DECISION AND ORDER
Plaintiff,
No. 08-CV-6530(MAT)
-vsLESTER WRIGHT, Assistant Deputy
Commissioner; DR. DEACEVEDO, TICHENOR,
DR. WHALEN, MR. B. LECUYER, Head Nurse
Practitioner; MS. WREST, Nurse
Practitioner; MS. OBERTEAN, Nurse
Practitioner; R. WOODS, Superintendent;
LIEUTENANT LAREAU; SERGEANT R. LYNCH;
SERGEANT P. WEST; SERGEANT MENARD; C.O.
G. DELANEY; C.O. MARTIN; C.O. TYLER; and
RABBI FRIEDMAN,
Defendants.

I.

Introduction
Pro

se

plaintiff

Yahkima

Gomez-Ka’Dawid

(“Plaintiff”)

instituted this action pursuant to 42 U.S.C. § 1983 alleging that
Defendants

violated

his

constitutional

rights

while

he

was

incarcerated at Clinton, Upstate, Comstock, and Wende Correctional
Facilities. On December 20, 2012, Defendants filed a motion to
dismiss pursuant to Local Rule 5.2(d) of the Western District of
New York’s Local Rules of Civil Procedure. (Dkt. #41).

For the

reasons discussed below, Defendants’ motion is granted, and the
complaint is dismissed with prejudice.

II.

Factual Background and Procedural History
When Plaintiff filed the instant action on November 21, 2008,

he listed his address as being in Alden, New York. (Dkt #1). At a
later point in the litigation, Plaintiff listed his address as
Auburn, New York. (Dkt #12). Defendants’ counsel sent a letter to
Plaintiff

at

his

then-listed

address

(Sing

Sing

Correctional

Facility in Ossining, New York) on November 29, 2012. However, this
letter was returned as “unclaimed/unable to forward” on December 5,
2012. See Declaration of Assistant Attorney General Hillel Deutsch,
Esq. (“Deutsch Decl.”) (Dkt #41-2).
At the time of Defendants filed their motion to dismiss in
December

2012,

However,

the

Plaintiff’s
records

of

address
the

New

was
York

listed
State

as

Sing

Sing.

Department

of

Corrections and Community Supervision (“DOCCS”) records showed that
Plaintiff had been released from custody on October 25, 2012, and,
as of December 20, 2012, he had not updated his address. See Hillel
Decl. (Dkt #41-2).
On December 31, 2012, the Court (Larimer, D.J.) issued a text
order in regards to Defendants’ motion to dismiss, informing
Plaintiff that “THE CLAIMS PLAINTIFF ASSERTS IN HIS COMPLAINT MAY
BE DISMISSED WITHOUT A TRIAL IF HE DOES NOT RESPOND TO THIS
MOTION.” (Dkt #42; caps in original). The next docket entry is
dated January 8, 2013, and notes that the text order (Dkt #42) sent
to

Plaintiff

was

“[r]eturned

as

-2-

[u]ndeliverable.”

(Dkt

Entry

1/08/13). A text order dated January 15, 2013, sent to Plaintiff
also was returned as undeliverable, with the further notation that
Plaintiff was no longer at the given address. (Dkt Entry 1/28/13).
The matter was transferred to the undersigned on March 13,
2013.
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 required that the clerks of the
district

courts

undertake

independently

to

maintain

current

addresses 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. May 19, 1985) and citing, inter alia, Williams v.
New Orleans Public Service, Inc., 728 F.2d 730 (5th Cir. 1984);

-3-

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
a lack of respect for the court); Ali v. A & G Co., 542 F.2d 595,

-4-

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 October 2012,
Plaintiff has had approximately five (5) months to update the Court
of his new address, which is more than enough time to fulfill his
obligation

under

Local

Rule

5.2(d).

-5-

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). Here, the Court attempted to do so after Defendants
filed their motion in December 2012, but the text order was
returned as undeliverable. Further attempts to notify Plaintiff
would be futile as the Court has no means by which to get in
contact with Plaintiff. See Reynoso v. Selsky, No. 02–CV–6318 CJS,
2011 WL 3322414, at *3 (W.D.N.Y. Aug. 2, 2011) (“While the Court
could issue an Order to Show Cause directing Plaintiff to explain
why this matter should not be dismissed for failure to prosecute
pursuant to Federal Rule 41(b), . . . it is established that
Plaintiff is not at his last known address and has not been for
over a year. Such an order would therefore be futile.”). Moreover,
the fact that Plaintiff 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, Defendants’ counsel notes that
Plaintiff’s

failure

to

update

his

address

is

effectively

foreclosing their efforts to defend this lawsuit. In particular,
Defendants’

November

29,

2012

-6-

letter

that

was

returned

as

undeliverable sought discovery of certain documents, including
copies of grievances filed by Plaintiff, necessary for defending
this action. Defendants’ counsel notes that because the events
underlying the Complaint are now more than five years old, and
DOCCS does not maintain grievance files for more than five years,
Plaintiff is the only party likely to possess such documents.
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
obviously be meaningless.” Reynoso v. Selsky, 2011 WL 3322414,
at *4.
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. Defendants’ motion to dismiss (Dkt #41) is
granted, and Plaintiff’s complaint (Dkt #1) is dismissed. 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

-7-

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
March 15, 2013

-8-