Opinion
9:23-CV-420 (GTS/MJK)
08-09-2024
KENNETH T. MEYERS, Plaintiff, v. SCHOHARIE COUNTY JAIL, et al., Defendants.
KENNETH T. MEYERS., Plaintiff, pro se THOMAS K. MURPHY, ESQ., for Defendants
KENNETH T. MEYERS., Plaintiff, pro se
THOMAS K. MURPHY, ESQ., for Defendants
REPORT-RECOMMENDATION AND ORDER
MITCHELL J. KATZ, U.S. Magistrate Judge
TO THE HONORABLE GLENN T. SUDDABY, U.S. DISTRICT JUDGE:
This matter has been referred for a report and recommendation by the Hon. Glenn T. Suddaby, U.S. District Judge, pursuant to 28 U.S.C. §636(b) and Local Rule 72.3(c). Pending before the court is defendants' unopposed letter motion to dismiss plaintiff's amended complaint for failure to prosecute and failure to comply with the local rules. (Dkt. No. 25). For the reasons set forth below, the court recommends granting defendants' motion.
I. BACKGROUND
Pro se plaintiff Kenneth Meyers, whose current address is not known to the court, commenced this action by filing a complaint pursuant to 42 U.S.C. 1983 on April 5, 2023, together with an application to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2). In his complaint, plaintiff asserts claims for violations of his constitutional rights arising out of his confinement at Schoharie County Jail on February 18, 2023. (See generally Dkt. No. 1). At the time he filed the complaint, plaintiff was still detained at the Schoharie County Jail. (Id. at 11).
On April 6, 2023, Judge Suddaby issued an order directing the administrative closure of plaintiff's action, with the opportunity to comply with the relevant filing fee requirements, because plaintiff's IFP application was incomplete. (Dkt. No. 3). In his order, Judge Suddaby cautioned plaintiff that
in accordance with the Rule 10.1(c)(2) of the Court's Local Rules, plaintiff shall promptly notify the Clerk's Office and all parties or their counsel, in writing, of any change in his address. Plaintiff's failure to do so may result in the dismissal of this action.(Id. at 3).
Plaintiff refiled his motion for leave to proceed IFP as permitted by Judge Suddaby, and the clerk's office subsequently reopened plaintiff's action and restored it to the court's active docket. (Dkt. Nos. 4, 5, 6). By decision and order filed on May 8, 2023, Judge Suddaby granted plaintiff's IFP application and reviewed the sufficiency of the complaint in accordance with 28 U.S.C. §§ 1915(e) and 1915A. (Dkt. No. 7). Based on that review, the court determined that plaintiff's complaint failed to state one or more claims upon which relief could be granted. (Id. at 13). The court further afforded plaintiff the opportunity to file an amended complaint. (Id.).
On May 19, 2023, plaintiff filed what he purported to be the “amended complaint.” (Dkt. No. 9). The court rejected plaintiff's filing due to its noncompliance with the N.D.N.Y. Local Rules. (Dkt. No. 10 at 3). Plaintiff made another attempt to file an amended pleading on June 21, 2023 (Dkt. No. 11), which submission was also rejected by the court, with leave to refile (Dkt. No. 12).
Plaintiff filed an amended complaint on August 2, 2023, which the district court accepted for filing and deemed the operative pleading by decision and order dated August 22, 2023. (Dkt. Nos. 13, 14). Based on its initial review, the court found that plaintiff's excessive force claims against defendants Johnson and Keller required a response. (Dkt. No. 14). In addition, the court cautioned plaintiff that he was
required to promptly notify the clerk's office and all parties or their counsel, in writing, of any change in his address; [the] failure to do so will result in the dismissal of his action.(Id. at 5). A copy of the August 2023 order was served upon plaintiff via regular mail at his address of record at Schoharie County Jail. (Id.). However, on September 5, 2023, the clerk of the court received it back as undeliverable. (Dkt. No. 16).
Defendants Johnson and Keller filed an answer to the amended complaint on October 30, 2023, and the next day the court issued a pretrial discovery and scheduling order (“Scheduling Order”). (Dkt. Nos. 20, 21). The Scheduling Order was served via regular mail on plaintiff at his address of record at Schoharie County Jail. (Dkt. No. 21). On November 22, 2023, the Scheduling Order was returned to the clerk of the court as undeliverable, indicating “Return To Sender . . . Refused . . . Unable To Forward.” (Dkt. No. 22). This matter was reassigned to me on January 5, 2024, via text order. (Dkt. No. 23). The copy of this text order mailed to plaintiff was likewise returned to the clerk of the court as undeliverable. (Dkt. No. 24).
On April 24, 2024, defendants filed the pending letter motion seeking dismissal of plaintiff's action for failure to prosecute and failure to comply with the local rules with respect to updating his current address. (Dkt. No. 25). In the motion, defense counsel indicates that he has received “no contact whatsoever from plaintiff at any time during the pendency of this action.” (Id. at 2). Counsel further represents that the answer to the amended complaint, served by mail on plaintiff at his address of record in November 2023, was returned on October 30, 2023 as undeliverable and marked “Return to Sender” and “Unable to Forward.” (Id.). Counsel avers that plaintiff was released from jail in or about August 2023, and failed to leave a forwarding address or notify the court and defendants of his current address. (Id.). Consequently, counsel argues, plaintiff has “abandoned this action” and ‘failed to prosecute . . . in any way since August of 2023[.]” (Id.).
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 Link v. Wabash R.R. Co., 370 U.S. 626 (1962); see also Tylicki v. Ryan, 244 F.R.D. 146, 147 (N.D.N.Y. 2006). 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, 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22, 1996).
Determining whether an action should be dismissed under Rule 41(b) involves the analysis of five factors:
(1) the duration of the plaintiff's failure to comply with the court order, (2) whether [the] 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.Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (citations omitted). No singular factor is dispositive. Nita v. Connecticut Dep't of Environmental Protection, 16 F.3d 482, 485 (2d Cir. 1994). “When imposed, the sanction of dismissal ‘operates as an adjudication upon the merits,' but may be without prejudice if so specified by the court imposing it.” Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982) (quoting Fed.R.Civ.P. 41(b)).
Here, in recommending the dismissal of plaintiff's amended complaint, the court recognizes that dismissal under Rule 41(b) is considered a harsh remedy, especially in an action brough by a Pro se plaintiff. LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001). However, Plaintiff has not taken any meaningful action to advance his case and has failed to timely communicate with the court and defendants. As such, the Court finds all five factors considered in deciding a Rule 41(b) motion favor dismissal.
As to the duration of plaintiff's failure to comply, the court considers two inquiries: (1) whether the delays associated with the failures to prosecute were those of the plaintiff, and (2) whether the duration of these delays existed for a significant period. Lynch v. Hanley, No. 1:21-CV-00025 (AMN/ML), 2023 WL 4763941, at *4 (N.D.N.Y. July 26, 2023). Plaintiff's last communication with the court pertaining to this action was the filing of his amended complaint over a year ago, on August 2, 2023. (Dkt. No. 13). He appears to have been released from Schoharie County Jail in August 2023, and has yet to update his current address with the court or defendants. “Although there is no ‘magic number' to determine whether Plaintiff's delay endured for a significant period .... the Court notes that Northern District New York Local Rule 41.2(a) provides that ‘plaintiff's failure to take action for four (4) months shall be presumptive evidence of lack of prosecution.' ” Id. (quoting N.D.N.Y. L.R. 41.2). Indeed, courts have repeatedly dismissed cases because the plaintiff failed to prosecute for four months. See Phillips v. Proud, No. 5:16-CV-1140 (LEK/ATB), 2018 WL 5620416, at *2 (N.D.N.Y. Oct. 30, 2018) (collecting cases). As such, the delays in this case, which well exceed the four month presumptive period and have been caused by plaintiff, weigh in favor of dismissal.
Second, as to the whether plaintiff was on notice, the court cautioned that plaintiff's failure to notify the court and defendants of any change in his address would result in dismissal of his case. (See Dkt. Nos. 3, 14). At least one of these warnings was served on plaintiff by mail at Schoharie County Jail, prior to his date of release. Moreover, plaintiff filed at least two other actions in this court in 2023, in each of which the same warning was issued concerning plaintiff's obligation under the local rules to keep the court apprised of any change in his address, and the possible consequence of dismissal for failure to do so. See Meyers v. Prime Care Medical, Inc. et al., No. 9:23-CV-230 (AMN/ML) (N.D.N.Y.) (Dkt. No. 3 at 3); Meyers v. Becker et al., No. 1:23-CV-173 (DNH/CFH) (N.D.N.Y.) (Dkt. No. 3 at 3). Thus, the second factor weighs in favor of dismissal.
The complaints in Meyers v. Prime Care Medical, Inc. et al. and Meyers v. Becker et al. were dismissed upon initial review prior to August 2023, and the plaintiff's address of record in both cases was Schoharie County Jail.
The third factor is also satisfied, as defendants have been prejudiced as a result of plaintiff's failure to adhere to court orders. “Where a plaintiff has become inaccessible for months at a time, courts presume prejudice.” Caussade v. United States, 293 F.R.D. 625, 630 (S.D.N.Y. 2013) (collecting cases) (citations omitted); Mayer v. Clinton Cty., No. 9:17-CV-905 (GLS/CFH), 2020 WL 5536800, at *5 (N.D.N.Y. Aug. 7, 2020); see, e.g., Hutcheon v. Farnum, No. 9:18-CV-00203 (MAD/CFH), 2019 WL 7971873, at *3 (N.D.N.Y. Nov. 4, 2019) (“[The] defendant has been prejudiced by [the] plaintiff's complete failure to participate in discovery.”), report and recommendation adopted, 2020 WL 90786 (N.D.N.Y. Jan. 8, 2020). Plaintiff is not only delaying the case itself, but also is hindering the ability of defendant to proceed. See Shannon v. Gen. Elec. Co., 186 F.3d 186, 195 (2d Cir. 1999) (“[D]elay 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.”). This factor therefore weighs in favor of dismissal.
As to the fourth factor, the court finds that its interest in managing the docket outweighs plaintiff's interest in receiving further opportunity to be heard. See Lucas, 84 F.3d. at 535; see Perez v. Wallace, No. 1:15-CV-240 (GTS/CFH), 2016 WL 2865737, at *3 (N.D.N.Y. Apr. 11, 2016); see also Pena v. Zazzle Inc., 587 F.Supp.3d 109, 114 (S.D.N.Y. 2022) (citation omitted) (“Although [the plaintiff's] failure to prosecute is a ‘silent' failure,” as opposed to one that is “vexatious and burdensome[,]” “the Court has a strong interest in managing its docket and cannot indefinitely wait for [the plaintiff] to turn his attention to this case. Furthermore, his ‘failure to comply with the court's order or make an attempt to prosecute this case dismisses his right to have the court hear his claim.”). Plaintiff has had a significant amount of time to update the court with his address, in addition to the missed opportunity to be heard in opposition to the defendants' instant motion. Thus, this factor also weighs in favor of dismissal.
As to the final factor, the imposition of a lesser sanction would have no effect on plaintiff, or this litigation, given his refusals to comply with the court's orders and local rules. See, e.g., Flynn v. Ward, No. 9:15-CV-1028 (BKS/CFH), 2019 WL 2085986, at *2 (N.D.N.Y. May 13, 2019) (noting lesser sanctions than dismissal were unlikely to be successful where the plaintiff did not update the Court with an address and the Court “currently has no way of contacting [him]”); see also Anthony v. Lyons, No. 9:18-CV-0849, 2021 WL 1701754 (GLS/CFH), at *5 (N.D.N.Y. Apr. 12, 2021) (“Dismissal has been found to be an ‘adequate remedy for failure to prosecute where a plaintiff cannot be contacted, because the plaintiff would be unaware of any lesser sanction that could be imposed.' ”); McKnight v. J. Ferrick, No. 9:16-CV-0957 (TJM/DEP), 2017 WL 3172794, at *3 (N.D.N.Y. June 30, 2017) (“plaintiff's failure to communicate, which by now is nearly six months, weighs in favor of dismissal .... [a]lthough the length of plaintiff's delay to date is not exceedingly long, there is no indication of an end to his inactivity.”). As such, the fifth factor also weighs in favor of dismissal.
After careful consideration of the relevant factors, the court concludes that dismissal of plaintiff's amended complaint is warranted under Rule 41(b). “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.” Christman v. Kalimulina, No. 21 CIV 7318, 2022 WL 17826119, at *2 (S.D.N.Y. Dec. 21, 2022) (collecting cases), report and recommendation adopted, 2023 WL 4841900 (S.D.N.Y. July 27, 2023). Moreover, dismissal is warranted under the Local Rules. See N.D.N.Y. L.R. 41(2)(a) (“Whenever it appears that the plaintiff has failed to prosecute an action or proceeding diligently, the assigned judge may order it dismissed.”); see also N.D.N.Y. L.R. 41(2)(b) (“Failure to notify the Court of a change of address by counsel or Pro se litigant within 14 days of a change in accordance with L.R. 10.1(c)(2) may result in the dismissal of any pending action.”). Nevertheless, considering plaintiff's Pro se status, the court recommends dismissal of the amended complaint without prejudice. See Nelson v. VanHoesen, No. 9:20-CV-258 (GLS/CFH), 2022 WL 605741, at *4 (N.D.N.Y. Feb. 1, 2022) (recommending dismissal of the Pro se plaintiff's complaint without prejudice for failure to prosecute where the plaintiff could not be reached at the address provided), report and recommendation adopted, 2022 WL 602651 (N.D.N.Y. Mar. 1, 2022); Jones v. Hawthorne, No. 9:12-CV-1745 (GTS/RFT), 2014 WL 2533166, at *2 (N.D.N.Y. June 5, 2014) (dismissing the pro se plaintiff's complaint without prejudice where the plaintiff had been released from DOCCS custody and failed to provide the Court with an updated address or communicate with the Court for ten months); Lynch v. Hanley, No. 1:21-CV-00025 (AMN/ML), 2023 WL 4763941, at *6 (N.D.N.Y. July 26, 2023) (dismissing complaint without prejudice so the plaintiff could bring the lawsuit “at another if and when he is prepared to diligently litigate it”).
WHEREFORE, for the reasons set forth above, it is hereby
RECOMMENDED, that the defendants' motion to dismiss for failure to prosecute and failure to comply with the local rules (Dkt. No. 25) be GRANTED, and plaintiff's amended complaint (Dkt. No. 13) be DISMISSED WITHOUT PREJUDICE; and it is further
ORDERED, that the clerk serve a copy of this Report-Recommendation and Order on plaintiff at the address the court has on file, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) 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, 89 (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); Fed.R.Civ.P. 6(a), 6(e), 72.