United States District Court, S.D. New York
June 16, 2004.
DANIEL MYVETT, Plaintiff,
PETER P. ROSATO et al., Defendants.
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
Daniel Myvett, proceeding pro se, brought this action under
42 U.S.C. § 1983 for alleged violations of his civil rights
stemming from two arrests by the Dobbs Ferry and Greenburgh, New
York police departments. Myvett has not taken any steps to
prosecute his claims in nearly a year and has not complied with
several discovery orders. For the following reasons, Myvett's
case should be dismissed for failure to prosecute pursuant to
Myvett brought this action pro se under 42 U.S.C. § 1983
alleging violations of his civil rights stemming from two
separate incidents involving the Dobbs Ferry and Greenburgh
police departments in which he alleges the police used excessive
force. Amended Complaint, filed June 11, 2003 (Docket #5)
("Amended Complaint"), ¶¶ 1-20. His request to proceed in
forma pauperis was granted on April 7, 2003. Order, filed
April 7, 2003 (Docket #3), at 2. At the time he filed his
original complaint, Myvett gave the Westchester County Jail as
his address. See Complaint, filed December 30, 2002 (Docket
#2). In his amended complaint filed on June 11, 2003, Myvett
listed the Bare Hill Correctional Facility, a New York State
prison in Malone, New York, as his address. See Amended
Complaint. On December 17, 2003, this Court issued an order pursuant to
Fed.R.Civ.P. 16 containing various deadlines for this matter,
including a March 12, 2004 deadline for the completion of all
discovery. See Pre-Trial Order, filed December 17, 2003 (Docket
#14), at 1. The defendants had previously served Myvett, at his
state prison address, with a notice of deposition,
interrogatories, and documents requests. See Notice to Take
Deposition upon Oral Examination, filed July 31, 2003 (Docket
#9); Defendants' First Set of Interrogatories and Request for
Production of Documents, dated September 19, 2003.
In February 2004, defendants' counsel wrote to the Court
stating that Myvett had failed to respond to their discovery
requests. See Pre-Trial Order, filed February 17, 2004 (Docket
#15) ("February 17 Order"), at 1. On February 17, 2004, the Court
issued an Order instructing Myvett to respond to the discovery
requests by March 15, 2004 and warning him that if he failed to
do so, "THIS CASE MAY BE DISMISSED." Id. (emphasis and
capitalization in original). Because the state prison website
indicated that Myvett had been paroled on January 15, 2004, the
Order instructed defendants' counsel to attempt to locate a
parole address for Myvett. Id. The Court mailed this Order to
Myvett's state prison address but the mailing was returned as
Thereafter, defendants' counsel obtained Myvett's new address
from Myvett's parole officer and informed the Court that, on
March 16, 2004, she had forwarded to Myvett at that address a
copy of the February 17 Order. See Memorandum Endorsement,
filed March 23, 2004 (Docket #16) ("March 23 Mem. End."). Because
of the delay in receiving the February 17 Order, the Court gave
Myvett until April 7, 2004 to comply. Id. The Court also
ordered Myvett to telephone defendants' counsel to arrange a date
for his deposition and warned that his case might be dismissed if he failed to comply with the Order. Id.
Myvett did not respond by April 7, 2004 as ordered. Thereafter,
defendants' counsel wrote to the Court requesting that the case
be dismissed under Fed.R.Civ.P. 37. See Memorandum
Endorsement, filed April 13, 2004 (Docket #17) ("April 13 Mem.
End."). Rather than issue a sanction at that time, the Court
ordered Myvett to write a letter by April 26, 2004 explaining his
failure to obey the Court's Orders and again warned Myvett of the
possibility of dismissal if he failed to provide a sufficient
explanation. Id. Myvett failed to respond to this Order as
On April 29, 2004, defendants' counsel wrote to the Court
requesting that the case be dismissed under Fed.R.Civ.P. 37 or
that defendants be permitted to "file a discovery motion seeking:
(a) dismissal of the Complaint and/or (b) preclusion at trial of
any information or documents requested during discovery." Letter
from Tania M. Torno to the Court, dated April 29, 2004 ("April 29
Letter"), at 2.
While the defendants have requested that this case be dismissed
under Fed.R.Civ.P. 37, the unavailability of Myvett makes it
more appropriate to inquire whether the case should be dismissed
for failure to prosecute. Fed.R.Civ.P. 41(b) provides
authority to dismiss a case for "failure of the plaintiff to
prosecute" upon a defendant's motion. Nonetheless, a court
possesses inherent authority to dismiss a case sua sponte on
this basis. See, e.g., Link v. Wabash R.R., 370 U.S. 626,
629-30 (1962); LeSane v. Hall's Sec. Analyst, Inc.,
239 F.3d 206, 209 (2d Cir. 2002).
A court should consider the following five factors in deciding
whether to dismiss a claim for failure to prosecute: " the duration of the plaintiff's failures, 
whether plaintiff had received notice that further
delays would result in dismissal,  whether the
defendant is likely to be prejudiced by further
delay,  whether the district judge has take[n]
care to strik[e] the balance between alleviating
court calendar congestion and protecting a party's
right to due process and a fair chance to be heard . . .
and  whether the judge has adequately assessed
the efficacy of lesser sanctions."
LeSane, 239 F.3d at 209 (alterations in original) (quoting
Alvarez v. Simmons Mkt. Research Bureau, Inc., 839 F.2d 930,
932 (2d Cir. 1988)). No one factor is dispositive, see Nita v.
Conn. Dep't of Envtl. Prot., 16 F.3d 482, 485 (2d Cir. 1994),
and where the litigant is pro se a certain measure of
leniency should be afforded, see Lucas v. Miles, 84 F.3d 532,
538 (2d Cir. 1996). Dismissal is "a harsh remedy to be utilized
only in extreme situations." LeSane, 239 F.3d at 209 (internal
quotation marks and citation omitted).
Regarding the first factor, there is no set time period of
inaction after which a court is authorized to dismiss for failure
to prosecute. Myvett last took any step on this case on July 22,
2003, when he filed an affirmation of service of the amended
complaint. See Affirmation of Service, filed July 22, 2003
(Docket #8). That nearly a year has elapsed since Myvett took any
steps to prosecute this case, such as by responding to
outstanding discovery requests, strongly counsels in favor of
dismissal. Cf. Chira v. Lockheed Aircraft Corp.,
634 F.2d 664, 666 (2d Cir. 1980) (dismissal for failure to prosecute after
six months of inaction). In addition, after Myvett was paroled on
January 15, 2004, he made no attempt to proceed with his case or
provide the Pro Se Office of this Court with his new address.
This failure also suggests that his case should be dismissed.
See Dong v. United States, 2004 WL 385117, at *3 (S.D.N.Y.
Mar. 2, 2004) (plaintiff's inaccessibility for two months without
notifying the Court or the Pro Se Office of a change of address
"strongly suggests that he is not diligently pursuing this
claim"); Ortiz v. United States, 2002 WL 1492115, at *2 (S.D.N.Y. July 11, 2002)
(nine months of inactivity by the plaintiff and no knowledge of
his whereabouts made it "impossible to proceed with this case");
see also Hibbert v. Apfel, 2000 WL 977683, at *2 (S.D.N.Y.
July 17, 2000) (pro se litigant has the responsibility to
update the Court as to his or her whereabouts).
The second factor also favors dismissal. This Court gave Myvett
numerous warnings that inaction on his part might lead to his
case being dismissed. The February 17, 2004 Order contained a
specific directive requiring Myvett to respond to the defendants'
discovery requests and warned him that his failure to respond
could result in dismissal. See February 17 Order at 1. In March
and April, the Court gave two further warnings to Myvett of the
potential for dismissal if he did not comply with Court
directives. See March 23 Mem. End.; April 13 Mem. End. It is
obvious that Myvett has been given ample notice that his case
could be dismissed. This case thus contrasts with those instances
where inaction has been attributed solely to the misconduct of
the party's attorney and not to the party itself. See, e.g.,
Dodson v. Runyon, 86 F.3d 37 (2d Cir. 1996).
The third factor whether the defendants will be prejudiced by
further delay is also met. In order to defend against a claim
of injuries and deprivations of civil rights, the defendants
naturally would need Myvett's testimony regarding the incidents
in question and might need information from other sources, such
as Myvett's doctors. Myvett's failure to participate in this
litigation vitiates the possibility of any such efforts. With the
further passage of time the difficulty of retrieving accurate
information will only increase. Case law recognizes that where a
plaintiff has unreasonably delayed in the prosecution of his or
her case, prejudice to defendants may be presumed. See, e.g.,
Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir.
1982); Coss v. Sullivan County Jail Adm'r, 171 F.R.D. 68, 71 (S.D.N.Y.
The fourth factor concerns striking a balance between
alleviating court congestion and respecting Myvett's due process
rights. Like all plaintiffs, Myvett deserves a "fair chance to be
heard." LeSane, 239 F.3d at 209. But Myvett frittered away his
"fair chance" by taking no action for nearly a year and
specifically ignoring Court directives. It is Myvett's
responsibility to move his case toward trial. The Court's docket
should not be taken up by cases that are not being actively
pursued. See Shim v. Richman, 1994 WL 115996, at *3 (S.D.N.Y.
Mar. 29, 1994) ("Half-hearted plaintiffs cannot be permitted to
clog the crowded docket of the court.").
The final factor concerns the applicability of lesser sanctions
other than dismissal. Here, it would be pointless to issue some
lesser sanction when Myvett has not made himself available to
comply with a Court Order of any kind.
In light of the above, this case presents one of those "extreme
situations" where a dismissal for failure to prosecute is
appropriate. Given the presumption in Rule 41(b) that a dismissal
"operates as an adjudication on the merits" and the lack of facts
mitigating Myvett's conduct, the dismissal should be with
For the foregoing reasons, this action should be dismissed with
prejudice pursuant to Fed.R.Civ.P. 41(b).
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties have ten (10) days from
service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such
objections (and any responses to objections) shall be filed with
the Clerk of the Court, with copies sent to the Hon. Loretta A.
Preska, 500 Pearl Street, New York, New York 10007, and to the
undersigned at 40 Centre Street, New York, New York 10007. Any
request for an extension of time to file objections must be
directed to Judge Preska. If a party fails to file timely
objections, that party will not be permitted to raise any
objections to this Report and Recommendation on appeal. See
Thomas v. Arn, 474 U.S. 140
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