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Hicks v. Faerichs

January 25, 2006

ALFONZO HICKS, PLAINTIFF,
v.
STEVE FAERICHS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Plaintiff commenced this action under 42 U.S.C. § 1983 on February 21, 2003, by filing a Complaint in the United States District Court for the Western District of New York. Presently before this Court is a Motion to Dismiss filed by the remaining defendants in this case on April 22, 2005. Defendants bring their motion pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. For the reasons stated below, Defendants' motion is granted and this case is dismissed with prejudice.

II. BACKGROUND

Along with filing his Complaint in this action on February 21, 2003, Plaintiff moved to proceed in forma pauperis. On May 29, 2003, this Court granted Plaintiff's motion and directed him to file an Amended Complaint. Plaintiff filed his Amended Complaint on July 1, 2003. Defendants filed their Answer on February 17, 2004.

On February 19, 2004, this Court referred this case to the Honorable H. Kenneth Schroeder, Jr., United States Magistrate Judge, for all pretrial matters and for hearing and disposition of all non-dispositive motions. Judge Schroeder scheduled a Preliminary Pretrial Conference for April 1, 2004. It appears from the docket that the Preliminary Pretrial Conference was adjourned several times before being rescheduled for June 17, 2004. Plaintiff failed to appear at the June 17, 2004 conference.

By Order dated June 17, 2004, Judge Schroeder rescheduled the Preliminary Pretrial Conference for July 13, 2004. Plaintiff appeared at that conference and a Case Management Order was issued by Judge Schroeder. Thereafter, in August and September of 2004, Plaintiff filed a flurry of motions, including a Motion to Reschedule a settlement conference that Judge Schroeder had ordered. Judge Schroeder rescheduled the settlement conference for October 22, 2004. Plaintiff failed to appear at the settlement conference.

On October 22, 2004, Judge Schroeder issued an Order rescheduling the settlement conference for November 4, 2004, and warning Plaintiff that is failure to appear at the conference could result in the dismissal of his case. Plaintiff again failed to appear.

On January 21, 2005, Judge Schroeder issued an Order scheduling a status conference for January 31, 2005, and again warned Plaintiff that his failure to appear could lead to dismissal of his case. At Plaintiff's request, the status conference was rescheduled for February 10, 2005. Plaintiff failed to appear in a timely fashion for that conference, having arrived 45 minutes late and after Defendants' counsel had departed the courthouse.

On February 10, 2005, Judge Schroeder issued an Order rescheduling the status conference for March 3, 2005. At that conference, Judge Schroeder denied Plaintiff's outstanding motions and scheduled an additional status conference for April 22, 2005. Plaintiff failed to appear for the April 22, 2005 status conference. In light of Plaintiff's failure to appear and his history of failing to appear when ordered to do so, Judge Schroeder suggested that Defendants file a Motion to Dismiss with this Court.

On April 22, 2005, Defendants filed the instant Joint Motion to Dismiss for Failure to Prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. On May 20, 2005, this Court filed a scheduling order directing Plaintiff to file a response to Defendants' Motion to Dismiss on or before June 20, 2005. This Court further warned Plaintiff that Defendants' motion could be granted as uncontested or his case dismissed for failure to prosecute if he did not file a response as directed. Plaintiff did not filed a response to Defendants' motion.

On November 30, 2005, this Court sua sponte issued a scheduling order providing Plaintiff another opportunity to contest Defendant's motion by December 23, 2005, and again warned Plaintiff that his failure to respond could result in the granting of Defendant's motion as uncontested or in dismissal of this case for failure to prosecute. Plaintiff again failed to respond.

III. DISCUSSION

A. Dismissal under Rule 41(b) For Failure ...


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