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March 25, 2003


The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge


To the HONORABLE LORETTA A. PRESKA, United States District Judge:


On April 23, 2002, pro se plaintiff Anthony Ashley ("Ashley") filed this action pursuant 42 U.S.C. § 1983 and § 1981, against the City of New York, Department of Corrections, Rudolph Giuliani and Alan Vengershy (collectively "defendants"), alleging racial discrimination. On November 12, 2002, this Court scheduled a conference for February 5, 2003, but was informed prior to the conference that the defendants had never been served with the complaint. The Court spoke with Ashley and informed him to contact the Pro Se office for direction in effectuating service. Ashley did not serve the defendants. For the reasons which follow, I respectfully recommend that Ashley's case be DISMISSED WITHOUT PREJUDICE.


Ashley worked for the New York City Department of Corrections ("Department") for nine years See Complaint at 2 (hereinafter "Compl."). Ashley was arrested on June 29, 1998, following an investigation by the Department into income tax fraud perpetrated by its employees. Id. Ashley alleges that he, along with thirty other corrections officers, was charged with conspiracy in a tax fraud scheme. Id. lie further alleges that white corrections officers were allowed to go to the Internal Revenue Service ("IRS") office to correct their tax forms and avoid criminal charges, while the minority corrections officers were not given the same opportunity. Id. Ashley was convicted and subsequently fired from his job as a corrections officer. Id.

Ashley filed a complaint in this action on April 23, 2002, alleging violations of his constitutional rights. Id. at 1. An initial conference with the Court was scheduled for February 5, 2003, but was cancelled because no defendant had been served. Ashley has still not served his complaint on the defendants, despite being informed to contact the Pro Se office for aid.


The district court has the discretion to dismiss cases for a lack of prosecution pursuant to Federal Rule of Civil Procedure 41(b). Lukensow v. Harley Cars of New York, 124 F.R.D. 64, 66 (S.D.N.Y. 1989) (citing Harding v. Fed. Reserve Bank of New York, 707 F.2d 46 (2d Cir. 1983)). "A District Court may, sua sponte, dismiss an action for lack of prosecution." Id. (citing Link v. Wabash R. Co., 370 U.S. 626 (1962)). The Second Circuit, however, has added a caveat to this discretionary power, cautioning that dismissal under Rule 41(b) "is a harsh remedy and is appropriate only in extreme situations." Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (citing Alvarez v. Simmons Mkt. Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir. 1988). Dismissal should be determined in "light of the whole record." Id. The Second Circuit has further advised district courts to "be especially hesitant to dismiss for procedural deficiencies where . . . the failure is by a pro se litigant." Id. (citing Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)).

Accordingly, the Second Circuit has established factors to be considered in determining whether a pro se litigant's case should be dismissed for lack of prosecution under Rule 41(b) as follows: "(1) the duration of the plaintiffs 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 plaintiffs interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal." Id. (citing Jackson v. City of New York, 22 F.3d 71, 74-76 (2d Cir. 1994) and Alvarez, 839 F.2d at 932).

In the instant case, it has been more over a year since Ashley filed the complaint and he still has not served the defendants. Although Ashley was informed that he was required to serve the defendants, and that he should contact the Pro Se office to find out the proper means to do so, he has failed either to serve defendants or otherwise contact the Court. Further delay of the proceedings would prejudice the defendants, and would unnecessarily impact on the Court's docket. The Court finds that dismissal without prejudice under 41(b) is warranted.


Axelband has failed to prosecute his case. The undersigned therefore recommends that the case be DISMISSED WITHOUT PREJUDICE.

Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Loretta A. Preska, 500 Pearl Street, Room 1320, and to the chambers of the undersigned, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Am, 474 U.S. 140, 150 ...

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