The opinion of the court was delivered by: William M. Skretny United States District Judge
Plaintiff Joshua Ray Williams commenced this action under 42 U.S.C. § 1983 on May 23, 2005, by filing a Complaint in the United States District Court for the Western District of New York. He filed an Amended Complaint on June 14, 2005. Presently before this Court is Defendants' Motion to Dismiss and for Sanctions. For the reasons stated below, Defendants' motion is granted in part and denied in part.
Plaintiff actively litigated this case during the year after it was filed. He amended his Complaint, requested the appointment of counsel, moved for a temporary restraining order, and took other actions consistent with active prosecution of this action. (Docket Nos. 4, 6, 8, 15.)
But it appears that Plaintiff stopped pursuing this case on or about May 10, 2006, when he sent Defendants a demand for interrogatories. (Thomson Affidavit, ¶ 6.) He failed to appear for the deposition Defendants noticed on October 26, 2006, and failed to comply with three separate Orders directing him to respond to the instant motion. (Docket Nos. 24, 25, 26.) In the last two of those Orders, this Court specifically warned Plaintiff that his case could be dismissed for failure to prosecute if he did not respond to Defendants' motion. (Docket Nos. 25, 26.) Nonetheless, Plaintiff never filed a response. Moreover, Plaintiff has not communicated with Defendants' counsel or this Court for more than a year.
Defendants' bring their Motion to Dismiss pursuant to Local Rule 5.2(d), which provides that "[a] party appearing pro se must furnish the Court with a current address at which papers may be served on the litigant." The rule specifically warns that "[f]ailure to do so may result in dismissal of the case with prejudice." Local Rule 5.2(d).
It is unclear whether Plaintiff has in fact failed to update his address, or whether he is simply not responding to mail sent to him. Defendants maintain that they have sent documents to the three different addresses that they have for Plaintiff, but no response was ever received. (Thomson Affidavit, ¶¶ 5-12.) Moreover, it is presumed that Plaintiff received this Court's Orders sent to him at the address listed in the docket, none of which have been returned as undeliverable. See Local Rule 5.2(d) ("Papers sent to [a pro se plaintiff's current address] will be assumed to have been received by plaintiff.")
In light of this uncertainty, this Court cannot grant Defendants' Motion to Dismiss on the grounds that Plaintiff failed to update his address in compliance with Local Rule 5.2(d). This Court finds, however, that dismissal is appropriate for failure to prosecute.
B. Dismissal under Rule 41(b) For Failure to Prosecute
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 ...