Opinion
Civil Action 23 Civ. 10322 (JHR) (SLC)
02-01-2024
ARMANDO SIMONAJ, Plaintiff, v. MERRICK GARLAND et al., Defendants.
HONORABLE JENNIFER H. REARDEN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
SARAH L. CAVE UNITED STATES MAGISTRATE JUDGE
On November 27, 2023, Petitioner Armando Simonaj (“Mr. Simonaj”) filed a petition under 28 U.S.C. § 2241 seeking a writ of habeas corpus vacating an “order of mandatory detention under agency regulations at 8 C.F.R. 208.33(a), which provide for mandatory detention in the custody of Department of Homeland Security, United States Immigration and Customs Enforcement until the time of physical removal, without the possibility of bond, parole or a subsequent credible fear interview.” (ECF No. 1 (the “Petition”)). On November 28, 2023, the Court notified Mr. Simonaj's attorney, Sam Gjoni (“Mr. Gjoni”), that the Petition “is deficient” because it “was not properly signed by” Mr. Gjoni, and directed him to refile the Petition. (ECF min. entry Nov. 28, 2023; see S.D.N.Y. Elec. Case Filing Rules & Instructions § 8). On December 18, 2023, the Honorable Jennifer H. Rearden referred the Petition for a report and recommendation. (ECF min. entry Dec. 18, 2023).
On December 28, 2023, Mr. Gjoni having failed to refile the Petition, the Court directed Mr. Gjoni to refile the corrected Petition by January 3, 2024. (ECF No. 2 (the “Dec. 28 Order”)). The Court warned Mr. Gjoni “that the failure to file the corrected Petition may result in a recommendation that this action be dismissed for failure to prosecute under Federal Rule of Civil Procedure 41(b).” (Id. at 1).
On January 19, 2024, Mr. Gjoni having failed to refile the Petition or otherwise respond to the Dec. 28 Order, the Court order Mr. Gjoni to show cause by January 29, 2024 why the Petition should not be dismissed under Federal Rule of Civil Procedure 41(b) for failure to prosecute or Federal Rule of Civil Procedure 16(f) for failure to comply with a Court Order. (ECF No. 3 (the “OTSC”)). The Court advised Mr. Gjoni that he could satisfy the OTSC “by filing either (i) a corrected Petition that meets the filing requirements of S.D.N.Y. Elec. Case Filing Rules & Instructions § 8, or (ii) a declaration explaining why the Court should deem the signature on the Petition to comport with those requirements.” (Id. 2). The Court warned Mr. Gjoni is “that failure to comply with [the OTSC] will result in a recommendation that the Petition be dismissed without prejudice.” (Id.) To date, Mr. Gjoni has not responded to the OTSC, refiled the Petition, or otherwise communicated with the Court.
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)). “A habeas petitioner, like any plaintiff in a civil case, has a general obligation to prosecute his case diligently, and, if he fails to do so, the Court may dismiss the action under Rule 41(b) for failure to prosecute.” Ikpemgbe v. New York, No. 18 Civ. 1027 (AT) (DCF), 2021 WL 4198409, at *1 (S.D.N.Y. Sept. 15, 2021). 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)). “‘There is no fixed period of time that must elapse before a plaintiff's failure to prosecute becomes substantial enough to warrant dismissal,' but ‘[d]elays of several months' have been found sufficient.” Farion v. Ezzo, 19 Civ. 5477 (LJL), 2020 WL 5578294, at *1 (SDNY Sept. 17, 2020) (quoting Caussade v. United States, 293 F.R.D. 625, 629 (S.D.N.Y. 2013)). “‘No one factor is dispositive,' and the ultimate decision of whether to dismiss should be made ‘in light of the record as a whole.'” Blake v. Payane, No. 08 Civ. 930 (PAC) (PED), 2011 WL 7163172, at *2 (S.D.N.Y. Mar. 11, 2011) (quoting United States ex rel. Drake v. Norden., Inc., 375 F.3d 248, 254 (2d Cir.2004)).
The Court concludes that dismissal of the Petition is warranted. More than 60 days have passed since the Court advised Mr. Gjoni and Mr. Simonaj that the Petition “is deficient” because it “was not properly signed by” Mr. Gjoni, and directed him to refile the Petition. (ECF min. entry Nov. 28, 2023; see S.D.N.Y. Elec. Case Filing Rules & Instructions § 8). Mr. Gjoni failed to refile the Petition, and has now disregarded two Court Orders directing him either to refile a corrected Petition that meets the filing requirements of S.D.N.Y. Elec. Case Filing Rules & Instructions § 8, or explain why the Court should deem the signature on the Petition to comport with those requirements. (ECF Nos. 2-3). The Court warned Mr. Gjoni and Mr. Simonaj that Mr. Gjoni's failure to comply with the Court's orders could result in a recommendation of dismissal. (ECF Nos. 2 at 1-2; 3 at 2). Despite these warnings, however, Mr. Gjoni has neither refiled the Petition nor justified the deficient pleading. Indeed, since filing the Petition on November 27, 2023, Mr. Gjoni has not communicated with the Court at all. Given Mr. Gjoni's complete lack of communication and disregard of the Court's orders, no lesser sanction than dismissal is appropriate. See Guerrier v. United States, No. 22 Civ. 4142 (JSR) (JLC), 2022 WL 17100527, at *2 (S.D.N.Y. Sept. 22, 2022) (recommending dismissal of habeas petition for petitioner's “failure to comply with this Court's orders and thus, failing to prosecute”), adopted by, 22 Civ. 4142, ECF No. 9, (S.D.N.Y. Nov. 1, 2022); Sumpter v. Sears, No. 09 Civ. 689 (KAM), 2012 WL 95214, at *3 (E.D.N.Y. Jan. 12, 2012) (dismissing habeas petition “under Federal Rule of Civil Procedure 41(b) for petitioner's failure to prosecute and comply with the court's orders”); see also Guarneri v. Superintendent, No. 14 Civ. 416 (DNH) (ATB), 2015 WL 5146950, at *3 (N.D.N.Y. Sept. 1, 2015) (dismissing habeas petition under rule 41(b) for failure to prosecute and failure to obey court orders).
Accordingly, I respectfully recommend that the Petition be dismissed without prejudice pursuant to Rule 41(b). * * *
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 Rearden.
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).