The opinion of the court was delivered by: Hon. Hugh B. Scott United States Magistrate Judge
Defendant T. Downs orally moved to dismiss the Complaint in this case for failure to prosecute (see Docket No. 23), which the Court granted and stated that an Order would issue. Previously, the parties consented to proceed before the undersigned as Magistrate Judge (Docket No. 12).
Plaintiff, proceeding pro se, initially sued as an inmate from a New York State correctional facility. Plaintiff alleged several grounds for violation of his civil rights (see Docket No. 4, Am. Compl.). The claim that survived initial review (see Docket Nos. 3, 7), involved plaintiff, then a parolee at Willard Drug Treatment Center, refusing to eat an undercooked waffle on December 23, 2006. Defendant correction officer T. Downs allegedly then forced the waffles into plaintiff's pocket (Docket No. 4, Am. Compl. at 25 of 26 pages). Plaintiff alleges that other unnamed officers (not defendants in this action) then placed plaintiff in mechanical restraints, kicked him, threatened him, twisted plaintiff's arms, and dug the handcuffs into his wrists (id.).
He alleged excessive force, in violation of the Eighth Amendment, and unspecified damages for compensatory and punitive relief.
From his correctional facility, plaintiff appeared at the scheduling conference (Docket No. 14). Plaintiff then was released from state custody (cf. Docket No. 10, notice of electronic filing for Order Referring Case, with plaintiff's address on Shield Avenue in Buffalo, New York) and signed the consent to have the case tried by a Magistrate Judge (Docket No. 12). He later moved for appointment of counsel (Docket No. 16*fn1 ), indicating that his new address following his release was an address on Ellicott Street in Buffalo, New York (see id., plaintiff's motion for appointment of counsel, at page 2, indicating his then-current address and asking the Court to note the change in address). This is the address of record that the Court currently has for plaintiff.
A final pretrial conference was scheduled for March 17, 2009 (Docket No. 18), but plaintiff did not appear (see Docket No. 20). The Court rescheduled this final pretrial conference for April 14, 2009 (Docket No. 20), including an Irby notice, see Irby v. New York City Transit Auth., 262 F.3d 412 (2d Cir. 2001), warning him that failure to appear may lead to dismissal of this action (with prejudice) and reminded plaintiff of this Court's Local Civil Rule 5.2(d) of his obligation to update the Court of his current address, see also W.D.N.Y. Loc. Civ. R. 5.2(e) (pro se parties are responsible for being familiar with Federal Rules and the Court's local rules, with failure to comply with the rules possibly resulting in dismissal of the case with prejudice). This notice was sent to his Ellicott Street address of record. Defendant noted at the scheduled final pretrial conference on April 14, 2009, that his mail to plaintiff was returned by the postal service as undeliverable (Docket No. 23). Similarly, the Order scheduling that conference was returned from plaintiff's address of record with the Court Clerk as undeliverable (see Docket No. 22).
I. Applicable Rules for Prosecution of Civil Actions and Pro Se Litigants
Federal Rule of Civil Procedure 41(b) states that "if the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action . . . Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19--operates as an adjudication on the merits," Fed. R. Civ. P. 41(b) (effective Dec. 1, 2007). Local Civil Rule 5.2(d) provides that a party proceeding pro se must furnish the Court with his current address at all times, with "papers sent to this address will be assumed to have been received by plaintiff." The pro se plaintiff must inform the Court in writing of any changes in address "immediately," with "failure to do so may result in dismissal of the case with prejudice." W.D.N.Y. Loc. Civ. R. 5.2(d).
Plaintiff was expressly warned by this Court to maintain his current address with the Court or face possible dismissal of his action (Docket No. 18, Amended Scheduling Order of Jan. 14, 2009; Docket No. 21). The Amended Scheduling Order (Docket No. 18) also reminded plaintiff of the sanctions available for failure to comply with a direction of the Court under Federal Rule of Civil Procedure 16(f). The notice for the reset April 14, 2009, conference (including an Irby notice, see Irby, supra, 262 F.3d 412) further warned plaintiff that if he failed to appear or failed to contact the Court to seek a change in the schedule for the conference, "this Court may recommend that the action be dismissed for failure to prosecute" (Docket No. 21, Order). Plaintiff did not appear at the April 14, 2009, conference ...