The opinion of the court was delivered by: Conner, Senior D.J.
At the direction of the Court of Appeals for the Second Circuit, this Court has reconsidered its dismissal of this action with prejudice for want of prosecution to determine whether the pro se plaintiff was competent to comprehend the consequences of his inaction.
Plaintiff, Lamont Jacobs, through his attorney at the time, brought a § 1983 suit on July 9, 1999 against the County of Westchester (the "County"). Plaintiff was incarcerated at the County Department of Correction on August 27, 1996, found guilty of Robbery in the 2nd degree on January 27, 1998, sentenced to 15 years on March 4, 1998 and removed to a State Correctional Facility on April 2, 1998. (Funt 8/30/06 Ltr. at 2.) Plaintiff alleged that while he was in the prisoner's holding pen of the White Plains Courthouse on November 7, 1996 he was injured when correctional officers assaulted him, and that on September 8, 1997 he suffered similarly forceful treatment from correctional officers while in his cell. He further alleged that the County failed to provide him with adequate and reasonable medical treatment needed as a result of the injuries he sustained, and that the County's policies and practices permit the use of excessive force against inmates.
On April 28, 2000 plaintiff's counsel wrote the Court seeking permission to discontinue the action because plaintiff was "totally incoherent and [did] not understand the realities of his situation," as well as "mentally incapable of pursuing his claim" and "was confined to a prison psychiatric ward." Jacobs v. County of Westchester, 2005 U.S. App. LEXIS 19523, at *3 (2d Cir. Sept. 7, 2005) (internal quotation marks omitted). By letter dated May 1, 2000, the Court allowed counsel to withdraw on the condition he notify plaintiff that failure to find new counsel within six months would result in dismissal for want of prosecution. Counsel so notified plaintiff on May 3, 2000.
Neither this Court nor defendant's counsel heard from plaintiff during the next six months. On November 15, 2000, we issued an Order to Show Cause for Dismissal with Prejudice instructing plaintiff to call chambers on January 19, 2001 and show cause why the action should not be dismissed for want of prosecution. Plaintiff sent three letters to the Court after this, on December 6, 11 and 16, 2000, requesting he be brought to Court. The Court replied by letter on December 13, 2000 and January 3, 2001 denying those requests and again directing plaintiff to call on January 19, 2001. Plaintiff never called.
By Order entered January 24, 2001, this Court dismissed plaintiff's claim with prejudice for failure to prosecute. Plaintiff filed a Notice of Appeal to the Second Circuit on August 19, 2002, more than one and a half years after this Court's Order, claiming the Court abused its discretion in dismissing plaintiff's claim. Plaintiff wrote to this Court several times after filing the appeal, on November 1, 10, and December 6, 2004, inquiring about the status of his case. We responded twice that the case was dismissed but pending appeal and that this Court therefore no longer had jurisdiction. On September 7, 2005, the Circuit remanded the case to this Court with instructions to make factual findings regarding the reasons for plaintiff's lack of responsiveness and confinement in the prison psychiatric ward, and to determine on the basis of those findings whether we should reconsider our earlier decision. Jacobs, 2005 U.S. App. LEXIS 19523, at *9.
In a telephone call initiated by the Court, plaintiff participated in a status conference from Auburn Correctional Facility ("Auburn") on December 7, 2005 in which he indicated that he wanted to proceed with the case pro se. He stated that his "investigators" were working to help him prepare for trial and that he felt he was competent to proceed pro se. Plaintiff agreed to authorize defendants to obtain his medical records. After receiving these records, and not having heard from plaintiff, defendants submitted a letter brief to this Court on August 30, 2006, serving plaintiff with a copy on the same day, arguing that the dismissal with prejudice for failure to prosecute was warranted. Defendants state they suffered substantial prejudice as a result of plaintiff's failure to prosecute, "particularly because plaintiff's allegations in his summons and complaint are vague and ill-defined and the County has no notice, nor records of Jacobs' allegations against it." (Funt 8/30/06 Ltr.)
Defendants also submitted plaintiff's medical record and a narrative report and summary of plaintiff's mental status from a nurse investigator. (Funt 9/1/06 Ltr., Exs. 2 & 3b.) According to the report and medical record, plaintiff has psychiatric problems dating back at least to 1992. Plaintiff was hospitalized at Central New York Psychiatric Center ("CNYPC") from June 19 to December 15, 1999. His diagnoses included delusional disorder, antisocial personality disorder, mild mental retardation and history of head injury. During this time, he was delusional and uncooperative and a court ordered treatment but not medication over objection on December 2, 1999. He was returned to Auburn because he refused all treatment. Plaintiff continued to receive mental health services but refused medication because he did not believe he had a mental health problem. According to his medical records, he suffered from "magical thinking," poor hygiene, delusions and hallucinations.
On April 6, 2000 plaintiff was admitted to the Intermediate Care Program ("ICP") at Auburn because of poor adjustment to the general population. Defendants state that the ICP "provides housing and treatment for inmates while also affording the inmate a protected environment that separates him from the general population" and is "similar to receiving mental health services at a clinic in a community." (Funt 8/30/06 Ltr. at 3.) Plaintiff continued to suffer from delusions, claiming for example that Governor George Pataki was his father. He attended recreational programs but kept to himself and was uninterested in any additional structured program. He continued to deny any psychiatric problems but still suffered from confusion, poor judgment and delusions. Delusions about connections to Governor Pataki, the CIA and various other government officials persisted, and he spoke of conspiracies against him and of his great wealth, claiming to have millions of dollars. On May 6, 2002 Dr. Mitchell Langbart, Psychiatrist II at Auburn, noted plaintiff had been in ICP for 2 years and was still uncooperative, non-interactive, refusing medications, suffering from scattered and impoverished thinking and lack of self-awareness. (Funt 9/1/06 Ltr., Ex. 3b.) From May 14, 2002 on, plaintiffs psychiatric symptoms improved after a court ordered medications over objection and plaintiff began treatment with anti-psychotic drugs. Id.
During the relevant time frame, plaintiff was in keep-lock twice: from July 23 to August 22, 2000 and September 22 to October 2, 2000. He made several calls to his mother, family and friends at various times while at the ICP and received outside communications and mail.
On September 20, 2006 this Court sent plaintiff a letter instructing him to respond by October 15, 2006 to defendant's evidence and arguments of August 30. After not hearing from plaintiff the Court sent another letter to the same effect on April 16, 2007 giving plaintiff until May 14, 2007 to respond. Plaintiff has not responded to this Court or defendants with either an explanation or evidence in opposition to defendant's arguments and factual submissions. This Court now reconsiders the dismissal, taking into account defendant's arguments and plaintiff's mental health and time in the ICP as instructed by the Circuit Court.
Rule 41(b) authorizes a district court to dismiss an action "[f]or failure of the plaintiff to prosecute or to comply with . . . any order of the court." FED. R. CIV. P. 41(b); Lucas v. Miles, 84 F.3d 532, 534-35 (2d Cir. 1996); Antonio v. Beckford, 2006 WL 2819598, at *2 (S.D.N.Y. Sept. 29, 2006). However, the Second Circuit cautions that "dismissal is a harsh remedy and is appropriate only in extreme situations." Lucas, 84 F.3d at 535. For a pro se litigant, dismissal is reserved for "circumstances [that] are sufficiently extreme," Coss v. Sullivan County Jail Adm'r, 171 F.R.D. 68, 70 (S.D.N.Y. 1997) (internal quotation marks and citation omitted), and "courts should be especially hesitant to dismiss [a pro se] claim for procedural deficiencies." Lucas, 84 F.3d at 535. However, even pro se litigants must prosecute claims diligently, and dismissal with prejudice is warranted where the court gives warning. See Gittens v. Garlocks ...