Opinion
21 Civ. 7318 (PGG) (GWG)
12-21-2022
SILVIANO CHRISTMAN, Plaintiff, v. DOCTOR SVETLANA KALIMULINA, et al., Defendants.
REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
I. FACTS
Plaintiff Silviano Christman brought this case alleging unlawful conditions of confinement at Rikers Island, including allegations that officers repeatedly used pepper spray on him and did not accommodate his disability. See Complaint, filed Aug. 31, 2021 (Docket # 2) (“Compl.”).
On September 21, 2021, the district court granted Christman's application to proceed in forma pauperis under 28 U.S.C. § 1915. Order, dated Sept. 21, 2022 (Docket # 4) (“Sept. 21 Order”). On November 16, 2021, Judge Gardephe issued an Order of Service granting Christman sixty days to file an amended complaint with facts showing certain defendants' direct involvement in the underlying events and requesting that defendants City of New York, Captain Fernandez, Captain Smith, C/O McQueen, and Deputy Warden Miller waive service. Order of Service, dated Nov. 16, 2021 (Docket # 6) (“Nov. 16 Order”). Although the Department of Corrections could not identify Captain Smith, the remaining defendants waived service. See Waiver of Service Returned Executed, filed Dec. 7, 2021 (Docket # 10); Waiver of Service Returned Unexecuted, filed Dec. 7, 2021 (Docket # 11); Waiver of Service Returned Executed, filed Dec. 13, 2021 (Docket # 12); Waiver of Service Returned Executed, filed Dec. 15, 2021 (Docket # 13).
On November 17, 2021, an “information package” which included, inter alia, the September 21 and November 16 Orders, was mailed to Christman at the address listed in his complaint. A December 29, 2021 docket entry notes that the information package was returned as undeliverable. On February 7, 2022, the Court granted defendants' request for an extension of time to respond to the complaint. Order, dated Feb. 7, 2022 (Docket # 16) (“Feb. 7 Order”). Per an April 6, 2022 docket entry, the February 7 Order was returned as undeliverable. On March 7, 2022, the Court granted defendants' request for a second extension of time to respond to the complaint. Order, dated Mar. 7, 2022 (Docket # 18) (“Mar. 7 Order”). Per an April 4, 2022 docket entry, the March 7 Order was returned as undeliverable. On April 5, 2022, the Court granted defendants' third request for an extension of time to respond to the complaint. Order, dated Apr. 5, 2022 (Docket # 20) (“Apr. 5 Order”). Per an April 21, 2022 docket entry, the April 5 Order was also returned as undeliverable.
On April 26, 2022, the Court granted defendants' request for a stay pending investigation of Christman's claims. Order, dated Apr. 26, 2022 (Docket # 22) (“Apr. 26 Order”). A May 31, 2022 docket entry indicates that the April 26 Order was returned as undeliverable. On November 25, 2022, defendants indicated that their investigation had concluded and requested that the Court dismiss Christman's claims under Fed.R.Civ.P. 41(b) for failure to prosecute because Christman has failed to maintain a valid address with the Court. Letter from Nicolette Pelegrino, filed Nov. 25, 2022 (Docket # 32) (“Nov. 25 Let.”).
Defendants stated that Christman is no longer incarcerated, and thus the address he provided at Rikers Island is no longer valid. Id. at 2. Defendants informed the Court that a copy of their October 26, 2022 letter (Docket # 31) was sent to plaintiff at the address on file, but was returned undeliverable on November 15, 2022. See Letter from Nicolette Pelegrino, filed Dec. 16, 2022 (Docket # 34) (“Dec. 16 Let.”), at 2. Defendants could not determine whether prior mailings from their office were similarly returned. Id.
On August 31, 2021, when Christman filed his complaint in this case, he “agree[d] to provide the Clerk's Office with any changes to [his] address” and acknowledged that he “underst[oo]d that [his] failure to keep a current address on file . . . may result in the dismissal of [his] case.” Compl. at 6.
On September 21, 2021, when the court granted Christman's application to proceed in forma pauperis, it also warned that “it is [p]laintiff's obligation to promptly submit a written notification to the Court if [p]laintiff's address changes, and the Court may dismiss the action if [p]laintiff fails to do so.” Sept. 21 Order at 2. Likewise, on November 16, 2021, when the court issued an Order of Service, plaintiff was again instructed that he “must notify the Court in writing if his address changes,” and was warned that “[f]ailure to do so may result in dismissal of this action.” Nov. 16 Order at 3 (emphasis in original). However, both the September 21, 2021 and November 16, 2021 mailings were returned as undeliverable. See Docket.
On November 29, 2022, the Court issued an order directing Christman “to file a letter with the Court on or before December 16, 2022, stating his current address.” Memorandum Endorsed, dated Nov. 29, 2022 (Docket # 33) (“Nov. 29 Order”). While this mailing has not yet been returned as undeliverable, the Department of Corrections' “Inmate Lookup Service” website shows that Christman is not located at Rikers Island, which is the last address he provided. Compl. at 6; see https://nysdoccslookup.doccs.ny.gov.
The Court's deadline to respond to the motion to dismiss has passed without any filing by the plaintiff. Plaintiff did not respond to the November 29 Order.
II. DISCUSSION
Federal Rule of Civil Procedure 41(b) provides, in relevant part, “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” While the text of Rule 41(b) addresses only the situation in which a defendant moves for dismissal, “it is unquestioned that Rule 41(b) also gives the district court authority to dismiss a plaintiff's case sua sponte for failure to prosecute.” LeSane v. Hall's Sec. Analyst Inc., 239 F.3d 206, 209 (2d Cir. 2001) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (“The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”)).
While courts typically apply a number of factors in evaluating the propriety of a dismissal for failure to prosecute, see Martens v. Thomann, 273 F.3d 159, 180 (2d Cir. 2001), it is sufficient here to say that this case cannot proceed without Christman's participation, and Christman has provided no method by which either the Court can inform him of his obligations in this case or its outcome. Courts have repeatedly recognized that dismissal for failure to prosecute is appropriate where a plaintiff effectively disappears by failing to provide a means by which he or she can be reached. See, e.g., Smith v. Griffen, 2017 WL 4466453, at *3 (S.D.N.Y. Aug. 31, 2017), adopted, 2017 WL 4477062 (S.D.N.Y. Oct. 5, 2017); Smith v. Corizon Health Servs., 2016 WL 3365320, at *1-2 (S.D.N.Y. May 9, 2016), adopted, 2016 WL 3407846 (S.D.N.Y. June 15, 2016); Miller v. Cnty. of Nassau, 2015 WL 13745258, at *2 (E.D.N.Y. Mar. 9, 2015), adopted, 2016 WL 5852473 (E.D.N.Y. Oct. 6, 2016); Pagan v. Westchester Cnty., 2014 WL 4953583, at *2 (S.D.N.Y. Oct. 1, 2014); Austin v. Lynch, 2011 WL 5924378, at *2 (S.D.N.Y. Nov. 29, 2011), adopted, 2011 WL 6399622 (S.D.N.Y. Dec. 20, 2011). “[A] pro se prisoner's failure to provide the court with a new mailing address after his release from custody has regularly been held to be an adequate ground for a Rule 41(b) dismissal.” McAuley v. City of New York, 2022 WL 524135, at *3 (S.D.N.Y. Feb. 22, 2022).
Rule 41(b) provides that dismissal “operates as an adjudication on the merits” unless the court specifies otherwise. But because “dismissal with prejudice is ‘a harsh remedy to be utilized only in extreme situations,'” Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982) (quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972)); see generally LeSane, 239 F.3d at 209 (“pro se plaintiffs should be granted special leniency regarding procedural matters”), dismissal of the complaint where a plaintiff effectively disappears at an early stage of the proceeding should be without prejudice, Coleman v. Doe, 2006 WL 2357846, at *2-4 (E.D.N.Y. Aug. 14, 2006) (dismissal without prejudice where the case had “not progressed beyond the initial pleading stage” and the pro se plaintiff could not be reached at the address he provided).
III. CONCLUSION
For the foregoing reasons, this case should be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b).
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Gardephe. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).