Opinion
18 Civ. 12196 (MKV) (GWG)
07-22-2021
EFREM JONES, Plaintiff, v. CORRECTION CAPTAIN GUERRA, et al., Defendants.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
I. FACTS
This action was originally brought by plaintiff Efirem Jones, proceeding pro se, alleging that in November 2018, defendants used excessive force against him by spraying the chemical agent MK-9 directly into his face and mouth while he was detained on Rikers Island. See Complaint, filed December 21, 2018 (Docket # 2), at 4. Plaintiff made an application to the Court to request counsel, which was granted. See Order, filed June 13, 2019 (Docket # 30). Pro bono counsel began representing Jones two months later. See Notice of Appearance, filed August 15, 2019 (Docket # 32); Notice of Appearance, filed August 15, 2019 (Docket # 33). Discovery proceeded and, after several extensions, is currently set to conclude on July 26, 2021. See Order, filed February 22, 2021 (Docket # 90) (extending deadline).
Jones' counsel now seeks to withdraw. See Letter Motion for Leave to File Motion to Withdraw, filed July 14, 2021 (Docket # 95). The letter represents that Jones was released from prison on April 22, 2021, and that since that time, "Mr. Jones has failed to communicate with his counsel and our attempts to reestablish contact with Mr. Jones have been unsuccessful." Id. Counsel attached a motion and declaration to their letter, in which counsel affirms that "Mr. Jones . . . has not communicated with [counsel] in over two months since Mr. Jones' release ... on or around April 22, 2021." Declaration of Jonathan D. Brit, filed July 14, 2021 (Docket # 95-3) ("Brit Decl."), ¶ 5. Counsel further affirms the following:
6. [Counsel's] last communication with Mr. Jones was during a legal phone call prior to his release . . . During this phone call, I advised Mr. Jones of his obligation to communicate with [counsel] after his release ... I also confirmed with Mr. Jones that he had my contact information, including my business phone number, physical address, and email address, and that Mr. Jones would be allowed to keep my contact information with him after his release.
7. Mr. Jones informed me that he did not currently have a physical address or other contact information available for after his release. Mr. Jones further stated he would reach out to [counsel] within four days following his release from Edgecombe with his new address and contact information.
8. After Mr. Jones failed to contact [counsel], I spoke with Mr. Jones' assigned parole officer ... on at least four occasions (on or about May 4, 2021, June 11, 2021, July 2, 2021, and July 13, 2021). On each occasion, [the parole officer] advised that Mr. Jones had failed to report as he had not contacted or met with her since his release.Id. ¶¶ 6-8. Counsel also affirms that they asked for emergency contact or next of kin information from Jones' parole officer, but no such information was listed for Jones. Id. ¶ 9. Counsel states that they served copies of their papers on Jones' parole officer "to be given to Mr. Jones should he start communicating with" parole and that they also provided parole "with a letter to Mr. Jones outlining our attempts to contact him and advising him of our request to withdraw as counsel in this matter." Id. ¶ 12.
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 plaintiffs 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 RR 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.")). Unless the court specifies otherwise, Rule 41(b) provides that dismissal "operates as an adjudication on the merits." However, 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 should be without prejudice, Coleman v. Doe, 2006 WL 2357846, at *3-4 (E.D.N.Y. Aug. 14, 2006) (dismissal without prejudice where pro se plaintiff could not be reached at the address he provided); Whitaker v. N. Y.C. Police Dep't, 1989 WL 37678, at *1 (S.D.N.Y.Apr. 11, 1989) (same).
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 Jones' participation, and Jones has provided no method by which either the Court or his counsel can inform him of his obligations in this case or its outcome. See Brit Decl. ¶¶ 6-8. 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 *l-2 (S.D.N.Y. May 9, 2016); Miller v. Cty. 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 Cty., 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); Abreu-Guzman v. Lempke, 2011 WL 4862959, at *2 (S.D.N.Y. Oct. 13, 2011); Grace v. New York, 2010 WL 3489574, at *2 (S.D.N.Y. Sept. 7, 2010); Coleman v. Doe, 2006 WL 2357846, at *2-3; Dong v. United States, 2004 WL 385117, at *3 (S.D.N.Y. Mar. 2, 2004); Ortiz v. United States, 2002 WL 1492115, at *2 (S.D.N.Y. July 11, 2002); Hibbert v. Apfel, 2000 WL 977683, at *2-3 (S.D.N.Y. July 17, 2000).
III. CONCLUSION
For the foregoing reasons, this case should be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b). Also, counsel's motion to withdraw (Docket # 95) should be granted.
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 Vyskocil. 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).