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April 6, 2005.

ANTWON WHITE, Plaintiff,
Dr. J. MITCHELL, Arthur Kill Correctional Facility Health Services Director, DENNIS BRESLIN, Arthur Kill Correctional Facility Superintendent and EDWARD CHECKETT, D.D.S., Arthur Kill Correctional Facility Dentist, Defendants.

The opinion of the court was delivered by: FREDERIC BLOCK, District Judge


Plaintiff Antwon White ("White"), a former inmate at the Arthur Kill Correctional Facility ("Arthur Kill"), brings this action pursuant to 42 U.S.C. § 1983 and New York law, alleging that during his incarceration, defendants were deliberately indifferent to his medical needs with respect to hearing loss that he suffered following the extraction of a wisdom tooth. Defendants move to dismiss White's complaint pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute. BACKGROUND

  In his complaint, White alleges that on or about August 5, 1999, he had a wisdom tooth extracted by defendant Edward Checkett, a dentist employed at Arthur Kill, and that soon after its extraction he began experiencing hearing loss in his left ear. He further alleges that when he brought this concern to the attention of defendant Jennifer Mitchell, Arthur Kill's Director of Health Services, she failed to provide him with appropriate medical attention. On November 15, 1999, White filed an administrative complaint requesting medical attention for his hearing loss, which request he alleges defendant Dennis Breslin, the facility's Superintendent, denied. Despite that allegation, it appears that on November 30, 1999, an Inmate Grievance Resolution Committee accepted his grievance and directed him to "report back to sick-call." Inmate Grievance Complaint, attached to Compl. On December 9, 1999, White was examined by an audiologist, who described the degree of hearing loss in his left ear as "severe — profound." NYSDOCS Request & Report of Consultation, attached to Compl. On December 23, 1999, he commenced this action.

  On or about March 14, 2001, the Court received notice that White had been released from custody and that his address had changed. After White failed to appear at a scheduled telephone conference before Magistrate Judge Chrein on March 16, 2001, the Magistrate Judge wrote to White at his new address, informing him that the conference had been adjourned until May 9, 2001, and cautioning him as follows: "You must appear whether or not you have counsel. . . . Should no one appear on your behalf, your case may be dismissed." Letter from Magistrate Judge Chrein dated Mar. 16, 2001. At the parties' request, the conference was adjourned until June 18, 2001. After White failed to appear on that date, the Magistrate Judge issued an Order directing him to file a written explanation for his failure and cautioning him that if he failed to do so, "a report and recommendation will be filed with the District Court recommending either the termination of this case or other appropriate sanctions." Order dated June 19, 2001. This Order was inadvertently sent to White's prior address. In a letter dated October 24, 2001, White informed the Court that he had not appeared at the June 18 conference because he had been incarcerated again on June 1, 2001.

  From October 2001 until he was released on parole in June 2002, White took a more active role in his case, writing letters to the Court and appearing at several telephone conferences. However, upon his release, he failed to provide the Court with a current mailing address. On July 31, 2002, the Magistrate Judge appointed pro bono counsel to represent him; on March 24, 2003, Bruno Bianchi ("Bianchi") filed a notice of appearance on White's behalf.

  At a June 22, 2004 status conference, Bianchi informed the Magistrate Judge that he had been unable to locate White, but that he was having an investigator attempt to do so. At an October 10, 2004 pre-motion conference, Bianchi informed the Court that he had located White and spoken with him by telephone, but that he needed additional time to confer with him regarding the merits of his claims. The Court directed Bianchi to inform it by November 22, 2004, as to whether his client intended to pursue his claims, and cautioned Bianchi that if he failed to do so, the defendants' motion would be referred to the Magistrate Judge to issue a report and recommendation.*fn1 The Court received no such update.

  By Order dated March 1, 2005, the Court directed Bianchi that he was to file any opposition to defendants' motion by March 11, 2005, and cautioned him that failure to do so would result in the motion being decided on the papers already filed. No opposition was filed.


  The Second Circuit has explained that "[i]nvoluntary dismissal for plaintiff's failure to prosecute is a matter committed to the discretion of the trial court by Rule 41(b). . . . However, dismissal is a harsh remedy to be utilized only in extreme circumstances." Colon v. Mack, 56 F.3d 5, 7 (2d Cir. 1995) (internal quotations and citations omitted). The circuit court has identified five factors to guide district courts in deciding whether dismissal under Rule 41(b) is appropriate: (1) the duration of the plaintiff's noncompliance; (2) whether the plaintiff was on notice that dismissal could result from this noncompliance; (3) the amount of prejudice caused to the defendant by further delay; (4) a balancing of the court's interest in managing its docket against the plaintiff's interest in having an opportunity to be heard; and (5) whether a less drastic sanction is available. See Jackson v. City of New York, 22 F.3d 71, 74-76 (2d Cir. 1994). In general, no particular factor is dispositive. See Nita v. Connecticut Dep't. of Envtl. Protection, 16 F.3d 482, 485 (2d Cir. 1994).

  With respect the duration of White's failures, there are two aspects: (1) whether the failures were his, as opposed to those of the Court or the defendants, and (2) whether the failures were of significant duration. See Jackson, 22 F.3d at 75. As to the first aspect, except for his failure to respond promptly to the Magistrate Judge's June 18, 2001 Order — of which he was likely unaware because it was inadvertently sent to the wrong address — his failures in this case cannot be attributed to the Court or defendants. As to the second aspect, given that from the time he was released on parole in June 2002 until the present date he has failed to prosecute this action in any meaningful manner, the Court finds his failures to be of significant duration. See, e.g., U.S. ex rel. Drake v. Norden Systems, Inc., 375 F.3d 248, 255 (2d Cir. 2004) (concluding that seventeen-month delay was significant); Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 666-68 (2d. Cir. 1980) (noting that although dismissal based on a failure to prosecute is a "pungent" remedy, even a six-month delay by the plaintiff may warrant such a measure).

  With respect to the adequacy of notice, White has been on notice since Magistrate Judge Chrein's Order of April 5, 2002, that if he persisted in failing to pursue his claims, he risked dismissal. Defendants' motion itself served to put him on further notice that the action might be dismissed. See Stoenescu v. Jablonsky, 162 F.R.D. 268, 271 (S.D.N.Y. 1995) (collecting cases holding that Rule 41(b) motion itself puts plaintiff on notice regarding consequences). Thus, it is clear that he had notice that dismissal could result from his failure to prosecute his claims. With respect to prejudice, the circuit court has explained that "delay by one party increases the likelihood that evidence in support of the other party's position will be lost and that discovery and trial will be made more difficult." Shannon v. General Elec. Co., 186 F.3d 186 (2d Cir. 1999). Accordingly, "[p]rejudice to defendants resulting from unreasonable delay may be presumed." Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). A presumption of prejudice is particularly appropriate where, as here, the delay was prolonged. Cf. id. (noting that "in cases where delay is more moderate or excusable, the need to show actual prejudice is proportionally greater"). Because the events at issue in this lawsuit took place more five years ago, the likelihood that evidence in support of the defendants' position had become unavailable and that their witnesses' recollection has diminished is significant. It is, therefore, appropriate to presume prejudice to the defendants.

  With respect to balancing the Court's interest in managing its docket against the plaintiff's interest in having an opportunity to be heard, the Second Circuit has explained that there must be "compelling evidence of an extreme effect on court congestion before a litigant's right to be heard is subrogated to the convenience of the court." LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 210 (2d Cir. 2001). Thus, this factor weighs against dismissal because White's failures have been "silent and unobtrusive" rather than "vexatious and burdensome[.]" Id. (explaining that the fourth factor weighed against dismissal where a plaintiff "did not swamp the court with irrelevant or obstructionist filings" but "simply did not make submissions required by the court[.]"). With respect to the final factor, the Court has carefully considered whether lesser sanctions than dismissal might be equally effective, and has concluded that they would not. White has demonstrated little interest in pursuing his case and has ignored every attempt by the Court to prevent undue delays in its disposition. The Court has warned him on several occasions, to no avail, that if he did not make greater efforts to pursue his case, it could be dismissed. Yet another admonition would serve no purpose.

  Thus, although the factor balancing the Court's interest in managing its docket against White's interest in having an opportunity to be heard weighs against dismissal, the other four factors weigh heavily in its favor. Accordingly, ...

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