Opinion
22-CV-4155 (JPO) (BCM)
08-01-2024
AZIZ SALAAM, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.
HON. J. PAUL OETKEN JUDGE
REPORT AND RECOMMENDATION
BARBARA MOSES, United States Magistrate Judge.
Plaintiff Aziz Salaam, proceeding pro se and in forma pauperis, filed this action on May 20, 2022, seeking injunctive relief and damages arising from his allegations that he was denied access to an imam while incarcerated on Riker's Island, see Compl. (Dkt. 1) at ECF p. 2, and that the Legal Aid Society's phone numbers were restricted on Riker's Island by the Department of Correction. Id. at ECF p. 4. Plaintiff has missed multiple conferences and discovery deadlines. He has also been warned, multiple times, that his continued failure to attend conferences or otherwise comply with his litigation obligations could result in dismissal of this action. Those warnings have had no effect. Consequently, I respectfully recommend that this action be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b).
Background
Plaintiff's handwritten complaint names defendants Louis Molina (Commissioner of the DOC), and Joseph Caputo, a Warden at the Anna M. Kross Center (AMKC) on Riker's Island. See Compl. at ECF p. 1. It lists plaintiff's address as 18-18 Hazen Street, East Elmhurst, NY 11370, which is the address of the AMKC on Riker's Island. See id.
Defendants filed their answer on November 28, 2022. (Dkt. 17.) On December 1, 2022, this matter was referred to me for general pretrial management. (Dkt. 18.) On December 2, 2022, I scheduled a telephonic initial case management conference to take place on January 25, 2023, and directed the AMKC to produce plaintiff for that conference. (Dkt. 19.) The Clerk of Court mailed my scheduling order to plaintiff at the address he provided in his complaint.
On December 19, 2022, the Court was notified that my scheduling order (Dkt. 19), as well as the district judge's order referring the case to me (Dkt. 18) were returned, with the notation "inmate not in system." On December 20, 2022, I adjourned the initial case management conference scheduled for January 25, 2023 sine die, ordered plaintiff to update his address with the Court no later than January 20, 2023, and attached a copy of this Court's pro se Notice of Change of Address form for plaintiff to use. (Dkt. 20.) I instructed plaintiff to mail or deliver the form to the Pro Se Intake Unit, and warned him that failure to update his address, or pursue this action diligently, could result in dismissal of the case. (See id.) The Clerk of Court mailed my December 20 order to plaintiff at the address he provided in his complaint, which was the only address he had ever given the Court. On January 12, 2023, the Court was notified that the December 20 order (Dkt. 20) had been returned.
Thereafter, no activity took place in this case until September 26, 2023, when plaintiff filed a Notice of Change of Address form advising the Court that his new address was 10-10 Hazen Street, East Elmhurst, NY 11370, which is the address of another housing unit on Riker's Island. (Dkt. 21.) On October 3, 2023, I scheduled a telephonic initial case management conference to take place on November 9, 2023, and directed the appropriate jail official to produce plaintiff for the conference. (Dkts. 22, 23.)
The initial case management conference was held on November 9, 2023. During the conference, plaintiff explained that he was no longer incarcerated, and orally provided the Court with his new mailing address in Jamaica, New York (the Jamaica address), a telephone number, and an email address. Additionally, he stated his desire to amend his complaint to add allegations that he was denied access to Islamic services at the Eric M. Taylor Center (EMTC) at Riker's Island in 2023. In my Initial Case Management Order, issued later that day (Dkt. 25), I set a discovery schedule (id. at 1); gave plaintiff a deadline of November 27, 2023, to amend his complaint (id. at 1); reminded him that "it is his obligation to update the Court in writing when and if his address changes, and to provide a current address where he can receive mail sent by the Court or other parties" (id. at 1); and ordered him to update his address with the Court in writing, using the pro se Notice of Change of Address form attached to the order, no later than November 27, 2023. (Id. at 1.) At my direction, the Clerk of Court mailed the Initial Case Management Order to plaintiff at the Jamaica address, and updated plaintiff's address on the docket accordingly. (Id. at 3.)
Plaintiff never filed an amended complaint, and never submitted another Change of Address form (or otherwise notified the Court in writing about the Jamaica address). Nonetheless, all orders issued since November 9, 2023, have been mailed to the Jamaica address, and none of those mailings has been returned.
The next status conference was scheduled for February 27, 2024. (See Dkt. 25 at 1.) One day prior to that conference, the Court's staff called plaintiff, at the telephone number provided during the initial conference, to remind him of the upcoming proceeding. An individual other than plaintiff, who did not speak English fluently, answered the phone. The Court then sent plaintiff a reminder of the conference via email, at the email address provided during the initial conference. Despite these efforts, plaintiff did not appear in the courtroom for the status conference on February 27, 2024. (Dkt. 28 at 1.) The Court's staff was ultimately able to arrange for plaintiff to appear telephonically. (Id.) At the conference, both parties conceded that they failed to adhere to any of the deadlines set forth in the Initial Case Management Order. (Id.) The Court revised the parties' discovery deadlines and scheduled an in-person status conference to take place on May 7, 2024. (Id. at 2.)
Plaintiff did not appear at the May 7, 2024 status conference. Although the Court's staff attempted to reach him at the telephone number he used to call in to the February 27 conference, no one answered the call. In an order issued later that day, I reminded plaintiff that defendants served him with interrogatories on April 18, 2024, and directed him to serve his written responses to the interrogatories no later than May 20, 2024. (Dkt. 31 at 1.) I also ordered plaintiff to make himself available, on request, for a deposition to occur no later than June 28, 2024 - the deadline for all remaining fact discovery. (Id.) Additionally, I reminded plaintiff that he must update the Court as to his current mailing address and phone number (id. at 1); provided instruction on how to do so (id. at 1-2); advised him again that "it is his obligation to meet all litigation deadlines, obey all Court orders, and appear for all scheduled conferences and other proceedings - unless he has sought and obtained an extension or adjournment in advance" (id. at 2); and warned him that "[i]f [he] continues to miss deadlines, disregard orders, and/or be absent for court proceedings, this action may be dismissed." (Id. at 2.) Finally, I scheduled an in-person status conference for July 1, 2024. (Id. at 2.)
By letter-motion dated June 24, 2024, defendants requested that the Court issue an order directing plaintiff to show cause why this action should not be dismissed pursuant to Fed.R.Civ.P. 41(b) for lack of prosecution. (Dkt. 32.) In the letter, defendants advised the Court that plaintiff never served discovery demands of his own, or responses to defendants' discovery requests. (Id. at 1.) Defendants further reported that on June 4, 2024, plaintiff was served with a notice of deposition - to take place on June 20, 2024 - but that plaintiff failed to appear for the deposition. (Id. at 1-2.) On June 25, 2024, I issued an Order to Show Cause (OSC) (Dkt. 33) directing plaintiff to "show cause, in writing, no later than July 15, 2024, why this action should not be dismissed pursuant to Fed.R.Civ.P. 16(f)(1)(C), and/or Fed.R.Civ.P. 41(b) for failure to comply with this Court's orders and/or for failure to prosecute." (Id.)
Defendant failed to appear at the status conference on July 1, 2024. On that day, the Court's staff attempted to reach plaintiff by telephone (at the number he used to call in to the February 27, 2024 conference), but the call went directly to a computer-generated voicemail message. (See Dkt. 34.) In an order issued later that day, I reminded plaintiff that" [i]f his contact information has changed since the February 27 conference, he must provide the Court his updated contact information." (Id.) I also warned plaintiff as follows:
If he fails to submit a written show-cause response by July 15, 2024, this action may be dismissed. Similarly, if plaintiff continues to disregard court orders, ignore his discovery obligations, and/or fail to attend scheduled court proceedings, this action may be dismissed.(Id.)
July 15, 2024 has now come and gone, but plaintiff has not responded to my June 25, 2024 OSC, or taken any other action in this case.
Discussion
Rule 41(b) provides that if a "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." Fed.R.Civ.P. 41(b). "A district court may decide, sua sponte, to dismiss a pro se litigant's action for failure to prosecute 'so long as a warning has been given that non-compliance can result in dismissal.'" McFarlane v. City of New York, 2014 WL 3865245, at *1 (S.D.N.Y. Aug. 4, 2014) (quoting Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009)); see also Adams v. City of New York, N.Y.P.D., 2018 WL 1801294, at *1 (S.D.N.Y. Apr. 12, 2018) (dismissing pro se complaint pursuant to Rule 41(b) where plaintiff had been warned that failure to comply with the Court's orders could result in dismissal); see also Zappin v. Doyle, 756 Fed.Appx. 110, 112 (2d Cir. 2019) (summary order) (affirming district court's dismissal of case where pro se plaintiff failed to comply with court orders).
In determining whether to dismiss a pro se action for failure to prosecute under Rule 41(b), the Second Circuit has directed district courts to 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.Short v. City of New York, 2018 WL 6618818, at *1 (S.D.N.Y. Dec. 18, 2018) (quoting Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (per curiam)).
Here, each factor favors dismissal. First, plaintiff has failed to fulfill any of his discovery obligations over the past eight months. Additionally, he failed to appear at two successive status conferences, on May 7, 2024 and July 1, 2024, and prior to that he appeared via telephone at the (in-person) status conference on February 27, 2024, only after the Court proactively contacted plaintiff for that purpose. Second, I have repeatedly warned plaintiff that his failure to attend court conferences, meet discovery deadlines, and otherwise comply with his litigation obligations could result in dismissal of this action. Third, defendants have been prejudiced by plaintiff's noncompliance in that they have been required to serve discovery and attend court conferences but have been unable to take any discovery or otherwise defend this action. Fourth, plaintiff has taken no substantive action to advance this case since filing the complaint on May 20, 2022 - over two years ago. Given an opportunity to amend his complaint, he failed to do so. Given an opportunity to provide deposition testimony, he failed to appear for examination. Fifth and finally, although I have considered sanctions less harsh than dismissal, I have concluded that, given plaintiff's in forma pauperis status, any less severe sanction would be both inappropriate and ineffective.
Conclusion
For the reasons stated above, I respectfully recommend that this action be DISMISSED, pursuant to Fed.R.Civ.P. 41(b), without prejudice.
The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to plaintiff at 162-18 Tuskegee Airmen Way, Jamaica, NY 11433.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from this date to file written objections to my 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 chambers of the Honorable J. Paul Oetken at the Daniel Patrick Moynihan United States Courthouse, 40 Foley Square, New York, New York 10007, and to the chambers of the Honorable Barbara Moses at the same address. Any request for an extension of time to file objections must be directed to Judge Oetken. Failure to file timely objections will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).