Bonano v. Sheahan et al

Filing 45

DECISION AND ORDER denying 42 Motion to Dismiss for Lack of Prosecution.The Court warns Plaintiff that if he does not appear for the October 7, 2019 conference before Magistrate Judge Payson and does not keep a current address on the docket, hi s case may be dismissed with prejudice.SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 9/11/2019.The NEF and Decision and Order were mailed to the following addresses: Michael Bonano, 65 Charles Gay Loop, Schwartz Building, Bed #313, Wards Island Men's Shelter, New York, NY 10035; Michael Bonano, c/o Law Office of D. Andrew Marshall, 225 Broadway, Suite 1405, New York, NY 10007; and, Michael Bonano, Project Renewal, 8 E. 3rd Street, Bed #6-038, New York, NY 10003. (AFM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL BONANO,
Plaintiff,

Case # 18-CV-6405-FPG

v.
DECISION AND ORDER
MICHAEL SHEAHAN, et al.,
Defendants.

INTRODUCTION
Pro se Plaintiff Michael Bonano brings this case against Defendants pursuant to 42 U.S.C.
§ 1983 for alleged violations of his constitutional rights while he was an inmate at Southport
Correctional Facility. ECF No. 1. On July 25, 2019, the Court referred this case to United States
Magistrate Judge Marian W. Payson for pretrial proceedings. ECF No. 38.
Judge Payson scheduled a conference with the parties for August 28, 2019 pursuant to
Federal Rule of Civil Procedure 16. Although Judge Payson sent Plaintiff notice of the conference,
Plaintiff did not appear. ECF No. 41. Additionally, Plaintiff is no longer incarcerated and some
of his mail has been returned as undeliverable since his release. ECF No. 39. As a result, on
September 5, 2019, Defendants moved to dismiss this case pursuant to Federal Rule of Civil
Procedure 41(b) and Local Rule of Civil Procedure 5.2(d), 1 arguing that Plaintiff has failed to
prosecute this case and keep a current address with the Court. ECF No. 42. Since then, on
September 10, 2019, Judge Payson scheduled another status conference for October 7, 2019. ECF
No. 44.
For the reasons that follow, the Court denies Defendants’ motion.

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Defendants also purport to bring their motion under Local Rule 5.2(e), but it is inapplicable to their request for
dismissal. Local Rule 5.2(e) merely indicates that the Clerk of Court will randomly assign pro se cases to district
judges and that multiple cases filed by the same pro se litigant will be assigned to the same judge.

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DISCUSSION
Under Rule 41(b), a court may dismiss a case for the plaintiff’s failure to prosecute his
claims. Lopez v. Pichardo 2230 Rest. Corp., 734 F. App’x 16, 17 (2d Cir. 2018) (summary order);
see Fed. R. Civ P. 41(b). Similarly, a court may dismiss a case under Local Rule 5.2(d) if a pro se
litigant fails to furnish the court with a current address.
In evaluating whether to dismiss a case for the plaintiff’s failure to prosecute, a court
considers: (1) whether the plaintiff’s failure caused a significant delay; (2) whether the plaintiff
was notified that further delay would result in dismissal; (3) whether the defendant is likely to be
prejudiced by further delay; (4) the balance between alleviating court calendar congestion and the
plaintiff’s right to an opportunity to be heard; and (5) the efficacy of lesser sanctions. Lopez, 734
F. App’x at 17-18 (citation omitted).
Here, Defendants have not analyzed the relevant factors; instead, they assert that Plaintiff’s
case should be dismissed because he “fail[ed] to comply with the rules of the Court.” ECF No.
42-1. Review of the factors, however, compels the conclusion that dismissal is not warranted.
First, Plaintiff’s inaction has not caused significant delay. Plaintiff missed a conference
that was scheduled to occur on August 28, 2019, only two weeks ago. Second, although
Defendants served their motion to dismiss upon Plaintiff and the Court’s scheduling order on that
motion indicated that Plaintiff’s case could be dismissed if he did not respond, Plaintiff has not
received formal notice from the Court, such as an order to show cause, warning him that delay in
this case could result in dismissal.
Third, as to whether Defendants are likely to be prejudiced by further delay, as noted above
the delay in this case has been short. Fourth, although the Court has a congested docket, it does
not outweigh Plaintiff’s right to an opportunity to be heard. Based on Plaintiff’s correspondence

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in his other cases, the Court believes that Plaintiff intends to prosecute this matter and that his lack
of communication is based upon his transfer between different shelters since his release from
prison. Finally, as to the fifth factor, based on all of the above, no sanction is warranted in this
case.
Accordingly, for all the reasons stated, the Court denies Defendants’ motion.
CONCLUSION
Defendant’s Motion to Dismiss (ECF No. 42) is DENIED. The Court warns Plaintiff that
if he does not appear for the October 7, 2019 conference before Magistrate Judge Payson and does
not keep a current address on the docket, his case may be dismissed with prejudice.
IT IS SO ORDERED.
Dated: September 11, 2019
Rochester, New York

______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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