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MYVETT v. ROSATO

United States District Court, S.D. New York


June 16, 2004.

DANIEL MYVETT, Plaintiff,
v.
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 Fed.R.Civ.P. 41(b).

I. BACKGROUND

  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 undeliverable.

  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 well.

  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.

  II. DISCUSSION

  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: "[1] the duration of the plaintiff's failures, [2] whether plaintiff had received notice that further delays would result in dismissal, [3] whether the defendant is likely to be prejudiced by further delay, [4] 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 [5] 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. 1997).

  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 prejudice.

  Conclusion

  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 RECOMMENDATION
  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 (1985).

20040616

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