Ross v. Smith

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

This matter has been referred for a Report and Recommendation by the Honorable Gary L. Sharpe, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Presently before the Court is Defendants' unopposed motion to dismiss Plaintiff's amended complaint with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (Dkt. No. 45.) For the reasons set forth below, the Court recommends granting Defendants' motion.

Pro se Plaintiff Christopher Ross, a former inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this action in January 2018 pursuant to 42 U.S.C. § 1983 alleging violations of his Eighth Amendment rights during his confinement at Greene Correctional Facility. (Dkt. No. 1.) By Decision and Order filed March 19, 2018, Plaintiff's application to proceed in forma pauperis ("IFP") was granted, but, following review of the complaint in accordance with 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), the Court found the complaint was subject to dismissal for failure to state a claim upon which relief may be granted. (Dkt. No. 9.) Thereafter, Plaintiff filed an amended complaint. (Dkt. No. 16.) By Decision and Order filed July 12, 2018, the Court found Plaintiff's Eighth Amendment medical indifference claims against Defendants Nurse Administrator Cole, Dr. Smith, and Superintendent Brandon Smith survived sua sponte review and required a response. (Dkt. No. 17.)

On Septmeber 11, 2018, Defendants moved to dismiss the amended complaint and revoke Plaintiff's IFP status. (Dkt. No. 24.) On September 19, 2018, Plaintiff filed a motion motion for a preliminary injunction. (Dkt. No. 25.)

By letter dated October 29, 2018, Plaintiff advised the Court that he was scheduled to be released from DOCCS custody on November 10, 2018, and that his new address would be 30 Oak Street in Port Chester, New York. (Dkt. No. 30.) This letter is the last communication Defendants received from Plaintiff about this action. (Dkt. No. 45 at ¶ 4.) It is also Plaintiff's last communication with the Court reflected on the Civil Docket for this action. See Dkt. Report.

On November 11, 2018, the Clerk confirmed Plaintiff's release from prison per the DOCCS Inmate Locater and updated Plaintiff's address on the Civil Docket as indicated in the October 29, 2018, letter. (See Dkt. Text Entry 11/19/2018.)

By Decision and Order filed November 7, 2018, the Court denied Plaintiff's motion for a preliminary injunction. (Dkt. No. 31.) The Order was served via regular mail on Plaintiff at Greene Correctional Facility and 30 Oak Street in Port Chester. (See Dkt. Text Entry 11/18/2018.) The Order mailed to Green Correctional Facility was returned to the Court as undeliverable. (Dkt. No. 32.)

By Decision and Order filed August 30, 2019, the Court denied Defendants' unopposed motion to revoke Plaintiff's IFP status and dismiss the amended complaint. (Dkt. No. 34.) Defendants answered the amended complaint on September 13, 2019. (Dkt. No. 35.)

On Septmeber 16, 2019, the Court issued a Mandatory Pretrial Discovery and Scheduling Order ("Discovery Order") setting various deadlines. (Dkt. No. 37.) For example, the Discovery Order directed the parties to provide a litany of documents to one another within 60 days and to conduct other discovery. Id. at 1-3. The Discovery Order also warned Plaintiff that his failure to attend his deposition could result in sanctions, including dismissal of the action. Id. at 5.

By Text Order entered March 13, 2020, the Court granted Defendants' request to extend the discovery and dispositive motion deadlines. (Dkt. No. 40.) By Text Order issued April 28, 2020, the Court granted Defendants' second request to extend the discovery and dispositive motion deadlines, and expressly reminded the parties, including pro se Plaintiff, of their obligations regarding discovery. (Dkt. No. 42.) By Text Order entered June 17, 2020, the Court again granted Defendants' request for extensions of the discovery and dispositive motion deadlines, and "advised that no further extensions will be granted absent good cause shown." (Dkt. No. 44.) The Court reset the discovery deadline to July 15, 2020, and the dispositive motion deadline to Septmeber 16, 2020. Id.

On June 22, 2020, Defendants' counsel served Plaintiff by mail with notice that his deposition would take place on July 10, 2020, in Albany, New York. (Dkt. No. 45-10 at ¶ 10.) Plaintiff failed to appear for his scheduled deposition on July 10, 2010. Id. at ¶ 11. Plaintiff has also failed to serve mandatory discovery. Id. at ¶ 13.

On July 21, 2020, Defendants filed the instant motion to dismiss for lack of prosecution. (Dkt. No. 45.) Briefly, Defendants argue dismissal is warranted based on Plaintiff's failure to participate in discovery and his overall absence from all matters relevant to this case. (Dkt. No. 45-1.)

By Notice dated July 22, 2020, the Court advised Plaintiff that any response to the pending motion to dismiss was due on August 17, 2020. (Dkt. No. 46.) On August 25, 2020, the Court sua sponte granted Plaintiff an extension of time until September 11, 2020, to file a response to the pending motion to dismiss. (Dkt. No. 48.) Plaintiff was advised that "failure to file any response to the motion may result in the motion being granted since the court will not have the benefit of [his] response to consider in making its decision." Id.

Plaintiff has not filed a response, nor communicated with the Court seeking an extension of time in which to do so. See Dkt. Report.

Rule 41(b) of the Federal Rules of Civil Procedure authorizes involuntary dismissal "[i]f the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order." Fed. R. Civ. P. 41(b). Such a dismissal is "the harshest of sanctions," to be used against a pro se plaintiff's claim "only when the circumstances are sufficiently extreme." Baptiste v. Sommers, 768 F.3d 212, 217 (2d Cir. 2014) (per curiam) (citations omitted). A Rule 41(b) dismissal must also "be proceeded by particular procedural prerequisites," including notice. Id. (quoting Mitchell v. Lyons Prof'l Servs., Inc., 708 F.3d 463, 467 (2d Cir. 2013)). "A district court considering a Rule 41(b) dismissal must weigh five factors," no one of which is generally dispositive:

(1) [t]he 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.

In considering the duration of Plaintiff's failure to prosecute his claims, the Court notes Local Rule 41.2(a) states that "the plaintiff's failure to take action for four (4) months shall be presumptive evidence of lack of prosecution." N.D.N.Y. L.R. 41.2(a). This action was commenced in January 2018, yet discovery remains at a standstill. A review of this case's procedural history shows Plaintiff's inactivity began after he was released from DOCCS custody. Since the time of his release in November 2018, Plaintiff has not taken any action in this case, well in excess of the four-months that create a presumption of lack of prosecution under the Local Rule. The Court has granted numerous discovery extensions and directed and reminded Plaintiff to comply with discovery obligations. (Dkt. Nos. 40, 42, 44.) Plaintiff failed to appear for his scheduled deposition on July 10, 2010. (Dkt. No. 45-10 at ¶¶ 10, 11.) Plaintiff has also failed to serve the mandatory discovery as set forth in Section I.A.1. of the the Discovery Order. Id. at ¶ 13. In further support of Plaintiff's lack of interest in pursuing this case, Plaintiff failed to respond to the instant motion to dismiss despite the Court sua sponte granting Plaintiff an extension of time to do so and there is no basis for believing that a renewal of communication is imminent. (Dkt. No. 48; see also Dkt. Nos. 45-3, 45-4.)

Regarding the second factor, Plaintiff was advised of his duty to appear at his deposition by the Court in its Discovery Order. (Dkt. No. 37 at 5.) Plaintiff was on notice that his failure to appear at the deposition could result in dismissal of the action. Id. ("The failure of the plaintiff(s) to attend, be sworn, and answer appropriate questions may result in sanctions, including dismissal of the action pursuant to Fed. R. Civ. P. 37."). Plaintiff was also advised that failure to file any response to the pending motion to dismiss for failure to prosecute may result in the motion being granted since the Court will not have the benefit of Plaintiff's response to consider in making its decision. (Dkt. No. 48.) See Nolan v. Primagency, Inc., No. 07 Civ. 134 (RJS), 2008 WL 1758644, at *3 (S.D.N.Y. Apr. 16, 2008) ("The Second Circuit has held that where a court puts a plaintiff on notice that the court is considering dismissal, and a plaintiff fails to file a document explaining the failures and outlining why the action should not be dismissed, this element has been met.") (citing Shannon v. General Elec. Co., 186 F.3d 186, 194-95 (2d Cir. 1999)).

Third, further delay would prejudice Defendants. The discovery period in the case closed July 15, 2020, and Defendants have been unable to depose Plaintiff. (Dkt. No. 44; Dkt. No. 45-10 at ¶¶ 10, 11.) Defendants have been otherwise impeded in conducting discovery in the case. (Dkt. No. 45-13 at ¶ 13.) The events giving rise to Plaintiff's Eighth Amendment deliberate indifference claims allegedly occurred in 2017 and 2018. (Dkt. Nos. 1, 16.) Further delay may well affect the parties' ability to locate witnesses, and to preserve evidence. See Georgiadis v. First Boston Corp., 167 F.R.D. 24, 25 (S.D.N.Y. 1996) (noting that passage of time would cause memories to fade); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982) (prejudice to defendants resulting from unreasonable delay may be presumed).

As to the fourth factor, continued delay cannot vindicate Plaintiff's interest in receiving an opportunity to be heard unless he offers some indication that he intends to take up that opportunity. Yet Plaintiff has made no such indication. As discussed above, Plaintiff has failed to take meaningful action in this case since November 2018, and Plaintiff has failed to respond to the pending motion and, thus, has demonstrated little interest in being heard. Simply put, "there is no indication that [Plaintiff] wishes to continue with this action." Phillips v. Proud, No. 5:16-CV-1140 (LEK/ATB), 2018 WL 5620416, at *2 (N.D.N.Y. Oct. 30, 2018).

Lastly, "there is nothing in the record to suggest that a sanction less serious than dismissal will resolve [Plaintiff's] failure to cooperate." Id. (quoting Singleton v. City of New York, No. 14-CV-9355, 2015 WL 9581781, at *2 (S.D.N.Y. Dec. 30, 2015)); see, e.g., Phillips, 2018 WL 5620416, at *2 ("A financial penalty may be even stronger medicine than dismissal for a pro se plaintiff proceeding in forma pauperis.").

In sum, after reviewing Defendants' motion and the entire Docket Report, the Court finds Plaintiff has failed to prosecute this matter. Even considering Plaintiff's pro se status, it is recommended that the dismissal of the action be with prejudice due to Plaintiff's apparent abandonment of this case as evidenced by his lack of communication and participation over the last twenty-four months, including his failure to appear for his deposition or respond to Defendants' pending motion to dismiss.

ACCORDINGLY, it is hereby

RECOMMENDED that Defendant's motion to dismiss (Dkt. No. 45) pursuant to Rule 41(b) of the Federal Rules of Civil Procedure be GRANTED; and it is further

ORDERED that the Clerk provide to Plaintiff a copy of this Order and Report-Recommendation, 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), 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 (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: November 2, 2020

Syracuse, New York

/s/_________

Thérèse Wiley Dancks

United States Magistrate Judge