Fogle v. Monroe County

Filing 62

-CLERK TO FOLLOW UP-DECISION AND ORDER granting 61 Motion to Dismiss for Lack of Prosecution. ORDERED, that Defendants motion to dismiss [#61] is granted, and this action is dismissed with prejudice. The Court hereby certifies, pursuant to 28 U.S .C. § 1915(a), that any appeal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in for ma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure. The Clerk of the Court is directed to terminate this action. Signed by Hon. Charles J. Siragusa on 3/13/15. (KAP)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
LARRY FOGLE,
Plaintiff
DECISION AND ORDER
-vs10-CV-6170 CJS
MONROE COUNTY,
Defendant
__________________________________________
INTRODUCTION
On March 26, 2010, Larry Fogle (“Plaintiff”) commenced this action, claiming that he
had suffered employment discrimination in violation of the Americans with Disabilities Act
(“ADA”). Now before the Court is Defendant’s application (Docket No. [#61]) to dismiss the
action for failure to prosecute. The application is granted.
BACKGROUND
Plaintiff commenced the action pro se. The gist of Plaintiff’s claim is that he suffered
a back injury, which prevented him from performing his regular job duties, and his employer,
the County of Monroe, refused to give him a light-duty work assignment. The Court granted
Plaintiff’s request to proceed in forma pauperis.

Plaintiff filed multiple motions for

appointment of counsel, which the Court denied. On January 14, 2011, Defendant filed a
motion pursuant to Fed. R. Civ. P. 12(c), which Plaintiff opposed. On March 4, 2011, Plaintiff
retained an attorney. On October 11, 2011, the Court denied Defendant’s Rule 12(c) motion.
See, Decision and Order [#24]. On January 11, 2013, Plaintiff advised the Court that he had
discharged his attorney and was going to once again proceed pro se. See, Docket No. [#33].
Subsequently, the Court granted Plaintiff’s renewed motion for appointment of counsel and
appointed Nicholas Pontzer, Esq. (“Pontzer”) to represent Plaintiff. See, Docket No. [#35].
Thereafter Pontzer filed an Amended Complaint [#42] on Plaintiff’s behalf, and conducted
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discovery on his behalf.
However, on November 5, 2014, Pontzer filed a motion [#51] for leave to withdraw as
Plaintiff’s attorney, due to the fact that Plaintiff had apparently moved from his last-known
address and left no forwarding address at which Pontzer could contact him. In support of the
application, Pontzer indicated that he has not heard from Plaintiff since August 2014, and that
a person living at Plaintiff’s last-known address told him that Plaintiff moved and left no
forwarding address. Pontzer further indicated that he sent letters to Plaintiff’s last-known
address, and left phone messages at Plaintiff’s last-known telephone number, but has not
received any response from Plaintiff.
On December 12, 2014, the Honorable Jonathan W. Feldman, United States
Magistrate Judge, granted Pontzer’s motion to withdraw, and stayed the matter for sixty days
to allow Plaintiff to retain a new attorney. See, Order, Docket No. [#56]. Magistrate Judge
Feldman indicated that a further conference would be held on February 25, 2015, at 11:00
a.m., and that if Plaintiff failed to appear for the conference he would entertain a motion to
dismiss for failure to prosecute. Id.

Pontzer sent a copy of Magistrate Judge Feldman’s

Order to Plaintiff’s last-known address by registered mail, but the registered letter was
returned, marked “refused.” See, Docket No. [#58].
On February 25, 2015, Plaintiff failed to appear for the conference scheduled before
Magistrate Judge Feldman. On March 5, 2015, Defendant filed the subject motion to dismiss
for failure to prosecute.
DISCUSSION
Rule 5.2(d) of the Local Rules of Civil Procedure provides that “[a] party appearing pro
se must furnish the Court with a current address at which papers may be served on the
litigant. . . . The Court must have a current address at all times. Thus, a pro se litigant must
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inform the Court immediately, in writing, of any change of address. Failure to do so may
result in dismissal of the case, with prejudice.” Moreover, Local Rule 41(b) provides that an
action may be dismissed for failure to prosecute.
Based upon the foregoing factual recitation, it appears that Plaintiff has abandoned this
action. Plaintiff failed to respond to his former (court-appointed) attorney’s letters and phone
calls for over five months. Moreover, it appears that Plaintiff moved and failed to provide
either his former attorney or the Court with his new address. Further, Plaintiff failed to appear
for a conference scheduled by the Court, without explanation.
CONCLUSION
Accordingly, it is hereby
ORDERED, that Defendant’s motion to dismiss [#61] is granted, and this action is
dismissed with prejudice. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that
any appeal from this Order would not be taken in good faith and leave to appeal to the Court
of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962).
Further requests to proceed on appeal in forma pauperis should be directed on motion to the
United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the
Federal Rules of Appellate Procedure. The Clerk of the Court is directed to terminate this
action.
SO ORDERED.
Dated:

Rochester, New York
March 13, 2015
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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