The opinion of the court was delivered by: William M. Skretny United States District Judge
Plaintiff commenced this action under 42 U.S.C. § 1983 on June 7, 2005, 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 for Failure to Prosecute filed by Defendants on October 26, 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.
Along with filing his Complaint in this action on June 7, 2005, Plaintiff moved to proceed in forma pauperis. On June 15, 2005, this Court granted Plaintiff's motion to proceed in forma pauperis and directed service on Defendants.
Defendants Sullivan and Sohn filed a Motion to Dismiss on July 28, 2005. On August 12, 2005, this Court issued an Order directing Plaintiff to file a response to Defendants' motion on or before September 2, 2005. This Court warned Plaintiff that his failure to file a response as directed could result in Defendants' motion being granted as uncontested or his case dismissed for failure to prosecute. Plaintiff did not file a response by the deadline.
On July 19, 2005, 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 September 29, 2005. Plaintiff failed to appear at this conference without explanation. By Order dated September 29, 2005, Judge Schroeder rescheduled the Preliminary Pretrial Conference for October 25, 2005, and warned Plaintiff that his failure to appear could result in his case being dismissed for failure to prosecute. Plaintiff again failed to appear. In light of the fact that this was Plaintiff's second failure to appear without explanation, Judge Schroeder suggested that Defendants file another Motion to Dismiss with this Court.
On October 26, 2005, Defendants filed the instant Motion to Dismiss for Failure to Prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. On November 1, 2005, this Court filed a scheduling order directing Plaintiff to file a response to Defendants' motion on or before November 30, 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 file a response to Defendants' motion.
On December 5, 2005, this Court sua sponte issued a scheduling order providing Plaintiff another opportunity to contest Defendant's Motion to Dismiss for Failure to Prosecute by December 30, 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 file a response.
A. Dismissal under Rule 41(b) For Failure to Prosecute
This Court finds that dismissal of this case is warranted pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, which provides that:
[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for ...