Opinion
21-CV-4251 (GHW) (BCM)
08-03-2022
TYRIEK GIBSON, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.
HON. GREGORY H. WOODS JUDGE
REPORT AND RECOMMENDATION
BARBARA MOSES UNITED STATES MAGISTRATE JUDGE
Pro se plaintiff Tyriek Gibson commenced this lawsuit on May 7, 2021, while incarcerated at the Vernon C. Bain Correctional Center (VCBC) in the Bronx. However, plaintiff has made no contact with the Court since July 13, 2021, and has failed to respond to three Court Orders requiring a response. Consequently, for the reasons addressed in more detail below, I recommend, respectfully, that this action be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b).
Background
Plaintiff filed his Complaint (Dkt. 2) on May 7, 2021, listing his address as the VCBC and alleging that defendants violated his constitutional rights by failing to protect him from contracting COVID-19 at that facility in February 2021. On May 18, 2022, Chief Judge Swain directed plaintiff to amend his complaint to "state whether Plaintiff is a pretrial detainee, which housing unit(s) he is or has been assigned to during the relevant time period, and identify the specific conditions within those units that he contends violate his constitutional rights." (Dkt. 4 at 7.)
On July 13, 2021, plaintiff filed his Amended Complaint (Dkt. 5), adding three individual Correction Officers (COs) as defendants and listing his address as the Anna M. Kross Center (AMKC) on Rikers Island. On September 20, 2021, Your Honor issued an Order of Service (Dkt. 7), which requested the City of New York and the three individual defendants to waive service of summons. The Order of Service further stated: "Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so." (Dkt. 7 at 4.) That same day, Your Honor referred this action to me for general pretrial supervision. (Dkt. 8.)
On September 21, 2022, I issued an Order Regarding General Pretrial Management (Dkt. 10), which was sent to plaintiff's AMKC address the following day but returned as undeliverable on October 1, 2022.
On October 5, 2021, the New York City Department of Correction (DOC) declined to waive service on behalf of CO Lopez because there is "more than one CO Lopez at VCBC." (Dkt. 12.) On October 19, 2021, I issued an Order (October 19 Order) (Dkt. 13) directing plaintiff to provide identifying detail, no later than November 19, 2021, regarding CO Lopez. The October 5 Order reminded plaintiff that "it is his obligation to update the Court, in writing, if his address changes," and was sent to plaintiff's AMKC address on October 19, 2021, but returned as undeliverable on November 3, 2021.
On November 5, 2021, I issued an Order (November 5 Order) (Dkt. 16) explaining that the Court had, through its own research, located plaintiff at the Cape Vincent Correctional Facility (CVCF) in Cape Vincent, New York. The November 5 Order extended plaintiff's deadline to providing identifying detail about CO Lopez until December 6, 2021, and warned plaintiff that if he "fails to update the Court as to his address, fails to comply with a Court order, or otherwise fails to meet his case-related responsibilities, the Court could impose a variety of sanctions, including dismissal of this action." (Id.) The November 5 Order (along with another copy of the October 19 Order) was sent to plaintiff's CVCF address that same day, and was not returned. However, plaintiff did not provide identifying detail about Lopez, update his mailing address, or take any other action to advance this case.
On June 28, 2022, I issued an Order to Show Cause (OSC) (Dkt. 17) directing plaintiff to show cause "in writing, no later than July 28, 2022, why this action should not be dismissed pursuant to Fed.R.Civ.P. 41(b), for failure to prosecute." The OSC warned plaintiff that if he failed to respond by that deadline, "the Court may dismiss this action for failure to prosecute without further notice." (Id.) The OSC was sent to plaintiff's CVCF address on June 29, 2022, but returned as undeliverable on July 5, 2022.
As of the date of this Report and Recommendation, plaintiff has not taken any action to prosecute his case since July 13, 2021. During that same period, no communication of any kind from plaintiff has been received. The Court has mailed copies of all orders in this action to plaintiff's addresses - as provided by him or uncovered by the Court - to no avail. There is no other address, known to the Court, to which to mail those orders or this Report.
The Court's own research reveals that plaintiff was released from CVCF on February 7, 2022. See https://nysdoccslookup.doccs.ny.gov/ (last visited August 3, 2022). As of the date of this Report he does not appear to have been reincarcerated at a different New York State or New York City correctional facility. Consequently, there is no known address in which the Court can send correspondence to plaintiff.
Legal Standards
The Federal Rules of Civil Procedure authorize district courts to dismiss an action "[i]f the plaintiff fails to prosecute or to comply with [the] rules or a court order." Fed.R.Civ.P. 41(b). A Rule 41(b) dismissal is "a harsh remedy to be utilized only in extreme situations." Lesane, 239 F.3d at 209 (quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972) (per curiam)), because Pro se plaintiffs are "granted special leniency regarding procedural matters." Id. (citing Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)); see also McDonald v. Head Crim. Ct. Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988) ("[P]ro se litigants may in general deserve more lenient treatment than those represented by counsel."). However, like all litigants, pro se parties "have an obligation to comply with court orders. When they flout that obligation they . . . must suffer the consequences of their actions." McDonald, 850 F.3d at 124.
Although Rule 41(b) provides for dismissals on motion, "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 (1962)).
"A district court considering a Rule 41(b) dismissal must weigh five factors: '1) the duration of the plaintiff's failure to comply with the court order, (2) whether plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are 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.'" Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)). No single factor is dispositive. Baptiste, 768 F.3d at 216 (internal citation omitted); Shannon v. Gen. Elec. Co., 186 F.3d 186, 195 (2d Cir. 1999).
Analysis
The factors listed above weigh strongly in favor of dismissing this action.
With respect to the first factor, the duration of plaintiff's failure to prosecute weighs in favor of dismissal. Plaintiff has not participated in this action in more than one year, and has missed three court-ordered deadlines in that time. (See Dkts. 13, 16, 17.) Under the circumstances presented here, that is long enough. Ruzsa v. Rubenstein & Sendy Attys at L., 520 F.3d 176, 177 (2d Cir. 2008) (upholding dismissal where party caused a seven-month delay); Brow v. City of New York, 391 Fed.Appx. 935, 937 (2d Cir. 2010) (affirming dismissal involving nearly six months of delay); Folk v. Barton, 2016 WL 8993874, at *2 (S.D.N.Y. Dec. 2, 2016) (dismissal appropriate where plaintiff failed to contact the defendants or the Court within a three-month period), report and recommendation adopted, 2017 WL 2191620 (S.D.N.Y. May 17, 2017).
The second factor looks to whether plaintiff was given notice that further delays would result in dismissal of his case. This factor also favors dismissal, given that this Court's orders dated September 20, 2021, November 5, 2021 and June 28, 2022, all put plaintiff on notice that his failure to comply with them, or otherwise pursue this action, could result in dismissal. See Hunter v. New York State Dep't of Corr. Servs., 515 Fed.Appx. 40, 43 (2d Cir. 2013) (affirming dismissal where plaintiff received "at least two notices that her action could be dismissed for a failure to prosecute"). Moreover, given that plaintiff has not furnished the Court with a new address at which he can be contacted, mailing additional warnings to him now would do no good.
The third factor - prejudice to the defendants - may be presumed where the plaintiff has unreasonably delayed pursuing his case. See Shannon, 186 F.3d at 195 (defendant suffers prejudice when "delay by one party increases the likelihood that evidence in support of the other party's position will be lost and that discovery and trial will be made more difficult").
The fourth factor calls for balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard. Dismissing the case without prejudice fairly weighs both interests. Should plaintiff wish to re-file his claims, which arose in February 2021, see Am. Compl. at 4, and are asserted pursuant to 42 U.S.C. § 1983, he would still have sufficient time within the applicable three-year statute of limitations to do so. Thrall v. Cent. New York Reg'l Transp. Auth., 399 Fed.Appx. 663, 666 (2d Cir. 2010) (dismissal without prejudice serves "the district court's need to clear its calendar without unduly penalizing a Pro se litigant for failing to comply with a scheduling order.").
The fifth factor also weighs in favor of dismissal. Because plaintiff has failed to contact the Court since July 13, 2021, or provide the Court with a current address, no lesser sanction than dismissal would effectively address his failure to prosecute. See Hunter, 515 Fed.Appx. at 43 (affirming Rule 41(b) dismissal in part because of "plaintiff's inactivity, for over seven months, in response to defendant's motion for summary judgment"); Robinson v. Healthfirst of NY & NJ, 2017 WL 3267740, at *3 (S.D.N.Y. July 31, 2017) (There was "no reason to believe a lesser sanction would be efficacious" where plaintiff "failed to appear in the face of an explicit warning that her case would be dismissed.").
Conclusion
For the reasons stated above, I recommend, respectfully, that this action be DISMISSED without prejudice pursuant to Rule 41(b).
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Gregory R. Woods at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Gregory R. Woods. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x, 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).