THÉRÈSE WILEY DANCKS, United States Magistrate Judge

APPEARANCES: PHILLIP INEGBENEBO
Plaintiff pro se
11 Bruce Avenue
Apt. 2F
Yonkers, NY 10795 HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendant
The Capitol
Albany, NY 12224 OF COUNSEL: RACHEL M. KISH, ESQ.
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge REPORT-RECOMMENDATION AND ORDER

This matter is presently before the Court to consider whether this 42 U.S.C § 1983 civil rights action should be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure based on pro se Plaintiff Phillip Inegbenebo's failure to prosecute. For the reasons that follow, the Court recommends granting Defendant's motion to dismiss (Dkt. No. 24) and dismissing the action without prejudice.

I. PROCEEDINGS TO DATE

Plaintiff commenced this action on October 12, 2015. (Dkt. No. 1.) At the time of filing, Plaintiff was represented by Sivin & Miller, LLP (hereafter "Sivin & Miller" or "Plaintiff's counsel"). Id. Plaintiff paid the $400 filing fee. (Dkt. No. 1-1.) Generally, Plaintiff claims in October 2014, Defendant Daniel C. Snyder arrested and prosecuted Plaintiff without probable cause. (See generally Dkt. No. 1.)

After being granted a brief extension of time to answer the complaint (Dkt. Nos. 7 and 8), Defendant filed his answer on January 7, 2016. (Dkt. No. 9.) The initial telephone conference was scheduled for February 1, 2016. (Dkt. No. 8.)

By letter dated January 21, 2016, Plaintiff's counsel requested a thirty-day adjournment of initial conference as counsel was unable to make contact with Plaintiff despite numerous attempts through several channels of communication. (Dkt. No. 11.) Plaintiff's letter motion was granted and the initial conference was rescheduled for March 1, 2016. (Dkt. No. 12.) On February 23, 2016, Plaintiff's counsel requested and received a second thirty-day adjournment of the initial conference because Plaintiff was seeking to substitute counsel in this action. (Dkt. Nos. 13 and 14.) The initial conference was rescheduled for April 27, 2016. (Dkt. No. 14.) The parties were advised no further adjournment would be granted absent extraordinary circumstances. Id.

On March 30, 2016, Sivin & Miller moved to withdraw as Plaintiff's counsel pursuant to Local Rule 83.2 of the Northern District. (Dkt. No. 15.) According to Plaintiff's counsel, subsequent to the service of the initial disclosures, irreconcilable differences arose between Sivin & Miller and Plaintiff regarding the manner in which to proceed with this lawsuit. Id. at ¶ 3. Sivin & Miller advised the Court that although it appeared Plaintiff would be seeking to substitute counsel, neither Plaintiff nor another law firm had notified them of any prospective substitution. Id. Sivin & Miller also advised their attempts to contact Plaintiff had been unsuccessful. Id. Plaintiff did not respond to the motion. The parties were advised the April 27, 2016, telephone conference would go forward as scheduled to discuss Plaintiff's counsel's motion to withdraw as attorneys. (See Text Entry 4/27/2016.)

During the April 27, 2016, telephone conference, Sivin & Miller advised the Court they had been unable to contact Plaintiff and that mail was returned by the Post Office labeled "unclaimed, unable to forward" and "vacant, unable to forward." Id. Sivin & Miller had also emailed Plaintiff but had received no response. Id. Plaintiff's deadline to respond to Sivin & Miller's motion was extended to May 12, 2016. Id. The Court directed Sivin & Miller to serve a copy of the motion to withdraw and a copy of April 27, 2016, Text Minute Entry upon Plaintiff via mail and email. Id.

On April 28, 2016, Sivin & Miller filed a Certificate of Service declaring that Plaintiff was served an additional copy of the notice of motion to withdraw as counsel and the supporting documents attached thereto, along with a copy of the Court's April 27, 2016 Text Order, by mail at his last-known residential mailing address and by email. (Dkt. No. 16.) Plaintiff did not file a response to Sivin & Miller's motion to withdraw as counsel.

On June 7, 2016, Sivin & Miller's motion to withdraw as counsel was granted. (Dkt. No. 17.) Plaintiff was advised he had thirty days to obtain new counsel and to file a notice of appearance. Id. Plaintiff was advised if new counsel failed to appear by July 8, 2016, he would be deemed proceeding pro se in this action. Id. Plaintiff was further advised if proceeding pro se, he was required to provide the Court his current mailing address and telephone number by July 8, 2016. Id.

Plaintiff failed to comply with the June 7, 2016, Text Order. (See Dkt. No. 18.) Accordingly, by Text Order dated July 11, 2016, Plaintiff was deemed to be proceeding pro se in this action. Id. The Court extended Plaintiff's deadline to notify the Court of his mailing address and telephone number to August 5, 2016. Id. Plaintiff was advised that failure to file the required information may be cause for dismissal for failure to prosecute. Id. The notifications and other mailings sent by the Clerk's Office were returned to the Court as undeliverable. (See Dkt. No. 20.) Plaintiff failed to comply with the July 11, 2016, Text Order. (See Dkt. No. 21.)

On August 9, 2016, in deference to Plaintiff's pro se status, Plaintiff was afforded one more opportunity to provide the Court with his mailing address and telephone number. Id. Specifically, Plaintiff was advised to update the Court by September 12, 2016, of his current contact information and that failure to do so would be cause for dismissal for failure to prosecute and failure to follow the Court's Orders. Id. Plaintiff failed to comply with the August 9, 2016, Text Order.

By letter motion dated September 13, 2016, Defendant requested dismissal of Plaintiff's complaint or, in the alternative, permission to formally move to dismiss Plaintiff's complaint based on Plaintiff's failure to prosecute and failure to follow the Court's directives. (Dkt. No. 22.) Defendant's letter motion to dismiss the complaint was denied without prejudice; Defendant was granted permission to file a formal motion to dismiss. (Dkt. No. 23.)

Defendant has moved for dismissal of Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 10.1(c)(2). (Dkt. No. 24.) Defendant served Plaintiff a copy of the pending motion to dismiss and supporting documents at his last known mailing address. (Dkt. No. 24-4.) Plaintiff was advised his response to the motion to dismiss was due by October 17, 2016. (See Dkt. No. 25.) Plaintiff has not filed his response, nor communicated with the Court seeking an extension of time in which to do so.

II. DISCUSSION

Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its discretion, dismiss an action based upon the failure of a plaintiff to prosecute the case, or to comply with the procedural rules or orders of the court. Fed. R. Civ. P. 41(b); see also Link v. Wabash R.R. Co., 370 U.S. 626 (1962). This power to dismiss may be exercised when necessary to achieve orderly and expeditious disposition of cases. See Freeman v. Lundrigan, No. 95-CV-1190 (RSP/RWS), 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22, 1996). It is also well-settled that the term "these rules" in Rule 41(b) refers not only to the Federal Rules of Civil Procedure, but also to the local rules of practice for a district court. See Tylicki v. Ryan, 244 F.R.D. 146, 147 (N.D.N.Y. 2006).

The Court considers the correctness of a Rule 41(b) dismissal in light of five factors: (1) the duration of the plaintiff's failure to comply with the court order (or the court's procedural rules); (2) whether plaintiff was on notice that failure to comply would result in dismissal; (3) whether the defendant is 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 v. Miller, 84 F.3d 532, 535 (2d Cir. 1996); Davis v. Citibank, N.A., 607 F. App'x 93, 94 (2d Cir. 2015).

As to the first factor, the Court notes that Local Rule 41.2(a) states that "the plaintiff's failure to take action for four (4) months shall be presumptive evidence of lack of prosecution." N.D.N.Y.L.R. 41.2(a). Here, Plaintiff has failed to take any action in this case for more than four months. (See Dkt. Nos. 17, 18, and 21.) Despite prodding from the Court, Plaintiff has not followed the Court's directives after being given multiple opportunities to do so. See id. In further support of Plaintiff's lack of interest in pursuing this case, Plaintiff failed to respond to the present motion to dismiss. Thus, the Court finds that the first factor weighs in favor of dismissal.

"The Second Circuit requires that the plaintiff receive adequate notice that the case could be dismissed due to inaction." Folk v. Rademacher, No. 00-CV-199S, 2005 WL 2205816, at *4, (W.D.N.Y. Sept. 9, 2005) (citing Martens v. Thomann, 273 F.3d 159, 180-81 (2d Cir. 2001)). As discussed above, Plaintiff has failed to contact the Court after being directed to do so multiple times by the Court. (See Dkt. Nos. 17, 18, and 21.) Plaintiff was notified that his failure to do so may constitute grounds for dismissal of the action for failure to prosecute and failure to follow the Court's orders. See id; see e.g., Nolan v. Primagency, Inc., No. 07 Civ. 134, 2008 WL 1758644, at *3 (S.D.N.Y. Apr. 16, 2008) ("The Second Circuit has held that where a court puts a plaintiff on notice that the court is considering dismissal, and a plaintiff fails to file a document explaining the failures and outlining why the action should not be dismissed, this element has been met.") (citing Shannon v. General Elec. Co., 186 F.3d 186, 194-95 (2d Cir. 1999)); Europacific Asset Mgmt. Corp. v. Tradescape, Corp., 233 F.R.D. 344, 353 (S.D.N.Y. 2005) ("A court's prior warning of dismissal, and subsequent inaction by a plaintiff, weighs in favor of dismissal."). Thus, the second factor also weighs in favor of dismissal.

The third factor is also satisfied as further delay is likely to prejudice Defendant. The events giving rise to Plaintiff's claims occurred in October 2014. (See Dkt. No. 1.) This action was commenced more than one year ago and Defendant filed his answer approximately nine months ago. (Dkt. Nos. 1 and 9.) The parties have yet to conduct discovery. Further delay may well affect the parties' ability to locate witnesses, and to preserve evidence. See, e.g., Georgiadis v. First Boston Corp., 167 F.R.D. 24, 25 (S.D.N.Y. 1996) (noting that passage of time would cause memories to fade).

Under the circumstances, the Court finds that the need to alleviate congestion on the Court's docket outweighs Plaintiff's right to receive a further chance to be heard in this case. It is the need to monitor and manage cases such as this that delay the resolution of other cases and contribute to the Second Circuit's relatively long median time to disposition for such civil rights cases.

Finally, the Court has carefully considered sanctions less drastic than dismissal and finds them to be inadequate under the circumstances.

III. CONCLUSION

After reviewing Defendant's motion and the entire Docket Report, the Court finds that Plaintiff has exhibited an apparent unwillingness to participate in this litigation. Despite several directives from the Court requesting information from Plaintiff, or directing Plaintiff to take specific steps to pursue this action, Plaintiff has repeatedly failed to comply and has provided no information to the Court concerning any measures taken to continue the action, or from which the Court could meaningfully gauge his level of persistence and enthusiasm for pursuing the action. Accordingly, based upon Plaintiff's failure to comply with directives from the Court, and after considering the factors relevant to a dismissal under Rule 41(b) of the Federal Rules of Civil Procedure, it is hereby

RECOMMENDED that Defendant's motion to dismiss (Dkt. No. 24) be GRANTED and this action be DISMISSED WITHOUT PREJUDICE for failure to prosecute; and it is further

ORDERED that the Clerk serve a copy of this Report-Recommendation and Order on Plaintiff, along with a copy of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72. Dated: October 21, 2016

Syracuse, New York

/s/_________

Thérèse Wiley Dancks

United States Magistrate Judge