Opinion
Civil Action 20 Civ. 4350 (ALC) (SLC)
11-22-2022
TIMOTHY DEROME PETTIES, ESQ., Plaintiff, v. KISHA SMALLS, et. al., Defendants.
REPORT & RECOMMENDATION
Sarah L. Cave, United States Magistrate Judge
TO THE HONORABLE L. ANDREW CARTER, United States District Judge:
On June 5, 2020, pro se Plaintiff Timothy Petties commenced this action, alleging violations of his federal constitutional rights during his detention on Rikers Island (“Rikers”). (ECF No. 1 (the “Complaint”)). Mr. Petties was detained on Rikers when he filed the Complaint, and listed the North Infirmary Command Facility (the “North Infirmary”) as his address. (Id. at 2).
On June 22, 2020, the Honorable Colleen McMahon granted Mr. Petties' application to proceed in forma pauperis. (ECF No. 4 (the “June 22 Order”)). In the June 22 Order, Judge McMahon advised Mr. Petties that “it is [his] obligation to promptly submit a written notification to the Court if [his] address changes, and the Court may dismiss the action if [he] fails to do so.” (Id. at 2). The June 22 Order was mailed to Mr. Petties. (ECF minute entry June 24, 2020).
On July 13, 2020, this case was reassigned to the Honorable Louis L. Stanton. (ECF min. entry July 13, 2020). On July 21, 2020, Judge Stanton dismissed Mr. Petties' claims and directed him to file an amended complaint. (ECF No. 6 at 12-13). On August 20, 2020, Mr. Petties filed an amended complaint, which named “Judge D. Riviezzo” and “C.O. Richardson” as defendants. (ECF No. 7 (the “Amended Complaint”)). Mr. Petties continued to list the North Infirmary as his address. (Id. at 1).
On September 21, 2020, this case was reassigned to the Honorable Andrew L. Carter. (ECF min. entry Sept. 21, 2020). On October 2, 2020, Judge Carter issued an order of service in which he, inter alia, dismissed Mr. Petties' claims against Judge Riviezzo, directed the Clerk of Court to mail an information package to Mr. Petties, and requested that C.O. Richardson waive service of the summons and Amended Complaint. (ECF No. 9 at 5). That same day, the Clerk of Court mailed an information package to Mr. Petties. (ECF No. 10 (the “Information Package”)). The Information Package included instructions for pro se litigants and specifically advised Mr. Petties:
If your contact information changes, it is your responsibility to notify the court in writing, even if you are incarcerated and transferred to another facility or released from custody.... Your case could be dismissed if you do not notify the court of an address change.(Id. at 2 (emphasis original)).
On October 30, 2020, Judge Carter directed the New York City Law Department (the “Law Department”) to ascertain C.O. Richardson's full name, shield number, and the address where he may be served. (ECF No. 12 at 2). On January 7, 2021, the Law Department provided C.O. Richardson's full name and address, and indicated that the City of New York (the “City”) was not authorized to accept service on his behalf. (ECF Nos. 18; 23 at 1).
On February 8, 2021, Judge Carter directed the U.S. Marshals Service to effect service on C.O. Richardson. (ECF No. 23 at 2 (the Feb. 8 Order”)). The Feb. 8 Order was mailed to Mr. Petties at the North Infirmary. (ECF min. entry Feb. 8, 2021). On February 23, 2021, however, the Feb. 8 Order was returned to the Court, with the reason for return listed as “Discharged.” (ECF minute entry Feb. 23, 2021). On June 28, 2021, C.O. Richardson, represented by the Law Department, filed an answer to the Amended Complaint. (ECF No. 31).
On November 4, 2021, the action was referred for general pre-trial supervision. (ECF No. 32). On November 19, 2021, the Court noted that records maintained by the New York State Unified Court System indicate that Mr. Petties may be in the custody of the City Department of Corrections (“DOC”), and directed the Law Department to (i) advise whether Mr. Petties was in DOC custody or, if not, (ii) provide Mr. Petties' last known address. (ECF No. 34). On December 3, 2021, the Law Department advised that Mr. Petties was no longer in DOC custody, and provided the North Infirmary Command as his last known address. (ECF No. 36 at 1). On behalf of C.O. Richardson, the Law Department also requested that the Court dismiss this action for failure to prosecute. (Id. at 2).
On December 6, 2021, the Court ordered Mr. Petties to show cause by January 5, 2022 why this case should not be dismissed under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute (the “December 6, 2021 Order”). (ECF No. 37). That same day, as directed by the Court (Id. at 4), the Law Department sent a copy of the December 6, 2021 Order to Mr. Petties at the email address listed on the Complaint. (ECF No. 38). The December 6, 2021 Order was also mailed to Mr. Petties at his address of record. (ECF No. 37 at 4; see ECF minute entry Dec. 6, 2021).
Mr. Petties was warned that failure to comply with December 6, 2021 Order may result in a recommendation of dismissal of this action. (ECF No. 37 at 3). To date, Mr. Petties has not responded to the December 6, 2021 Order or otherwise communicated with the Court. On January 28, 2022, the copy of the December 6, 2021 Order that was mailed to Mr. Petties was returned as undeliverable. (ECF min. entry Jan. 28, 2022).
Under Rule 41(b) of the Federal Rules of Civil Procedure, a district court may dismiss an action sua sponte for failure to prosecute after notifying the plaintiff. See Murray v. Smythe, 18 Civ. No. 4705 (KMK), 2020 WL 4482644, at *2 (S.D.N.Y. Aug. 3, 2020) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)). The Court must consider the duration of the plaintiff's failure to comply with court orders, whether he received notice that further delay would result in dismissal, defendants' prejudice from further delay, the efficacy of lesser sanctions, and the balance between “alleviat[ing] court calendar congestion” and protecting the plaintiff's right to due process. Caussade v. United States, 293 F.R.D. 625, 629 (S.D.N.Y. 2013) (quoting Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009)). “District courts in this Circuit have recognized that ‘the failure to maintain [a current address] with the Court is a ground for failure to prosecute' because ‘[t]he case cannot proceed' without such information.” Cabrera v. Brann, No. 21 Civ. 780 (JMF), 2021 WL 1549818, at *1 (S.D.N.Y. Apr. 20, 2021) (quoting Pratt v. Behari, No. 11 Civ. 6167 (JGK), 2012 WL 1021660, at *1 (S.D.N.Y. Mar. 26, 2012)); see Campbell v. New York City, No. 19 Civ. 5431 (JMF), 2020 WL 469313, at *1 (S.D.N.Y. Jan. 29, 2020) (“In light of the Court's inability to proceed without updated contact information for Plaintiff, dismissal of the case is warranted.”).
The Court concludes that dismissal of this case is warranted. Mr. Petties has been advised multiple times of his obligation to notify the Court if his address changes and that failure to do so may result in dismissal of his case. (See ECF Nos. 4 at 2; 10 at 2). Despite these warnings, however, Mr. Petties has not updated his address since his release from Rikers, which happened sometime before February 23, 2021. (See ECF minute entry Feb. 23, 2021). Mr. Petties was also warned that failure to respond to the December 6, 2021 Order could result in a recommendation of dismissal. (ECF No. 37 at 3). To date, Mr. Petties has not responded to or otherwise contacted the Court regarding the December 6, 2021 Order, which was sent to him at the email address listed on the Complaint. (ECF No. 38). Indeed, Mr. Petties has not communicated with the Court at all since filing his Amended Complaint on August 20, 2020-more than two years ago. (See ECF No. 7). Accordingly, “in light of the Court's inability to proceed without updated contact information for [Mr. Petties],” I respectfully recommend that this action be dismissed without prejudice pursuant to Rule 41(b). Cabrera, 2021 WL 1549818, at *1 (finding that, “given [the] Plaintiff's pro se status, . . . dismissal without prejudice is more appropriate than dismissal with prejudice”).
The Law Department shall promptly email a copy of this Order to Mr. Petties at the email address listed on the Complaint (ECF No. 1 at 7) and file confirmation of the emailing on the docket.
The Clerk of Court is respectfully directed to mail this Report and Recommendation to Mr. Petties at the address below.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Carter.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Mr. Petties does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, he may request copies from the Law Department. See Local Civ. R. 7.2.