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Isaac Frost v. Warden Robert Hourihorne

April 28, 2011

ISAAC FROST, PLAINTIFF,
v.
WARDEN ROBERT HOURIHORNE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge:

REPORT AND RECOMMENDATION

TO THE HONORABLE RICHARD J. SULLIVAN, United States District Judge:

I. Introduction

By notice of motion dated January 21, 2011 (Docket Item 46), defendants move to dismiss this action pursuant to Rules 37 and 41 of the Federal Rules of Civil Procedure on the ground that plaintiff has failed to comply with discovery Orders, failed to provide the Court with a current address and has failed to take any steps to prosecute this action for more than six months. Plaintiff has not responded to the motion. For the reasons set forth below, I respectfully recommend that defendants' motion be granted and that the action be dismissed.

II. Facts

Plaintiff commenced this Section 1983 action while he was an inmate in the custody of the New York State Department of Correctional Services ("DOCS") alleging that defendants failed to protect him from an assault by a fellow inmate. The original complaint was docketed by the Clerk of the Court on June 8, 2009. According to the DOCS web site, plaintiff was released to parole on or about July 10, 2010.

Although plaintiff sent numerous letters and applications to me while he was in custody, his correspondence came to an abrupt end once he was released. In fact, he never even bothered to provide me with a forwarding address despite the fact that I had issued an Order in April 2010 warning plaintiff that if he failed to provide the Court with a forwarding address after his release, his action would be dismissed.*fn1

In August 2010, my staff was able to locate plaintiff at a halfway house in Queens, New York, spoke to him by telephone and obtained his new address. I subsequently issued an Order to plaintiff on August 20, 2010 at his new address directing him to appear for a discovery/status conference on September 23, 2010 (Docket Item 43). This Order was not returned as undeliverable.

Although defendants' counsel appeared for the September 23, 2010 conference, plaintiff did not. Defendants' counsel advised me at the conference that plaintiff no longer resided in the Queens halfway house and that defendants' counsel did not know where plaintiff could be found. Because plaintiff had notice of the September 23 conference and failed to appear, I issued an Order on September 24, 2010 directing plaintiff to either produce certain documents sought by defendants by October 15, 2010 or show cause in writing why they should not be produced (Docket Item 44). This Order further provided: "Plaintiff is warned that an unjustified failure either to provide the foregoing documents and information by October 15, 2010 or to explain why production of the documents and information is inappropriate may result in the imposition of sanctions which may include the dismissal of plaintiff's complaint" (emphasis added).

My September 24, 2010 Order was mailed to plaintiff at both the Queens halfway house and Sing Sing Correctional Facility -- the DOCS facility at which he was last incarcerated. Although the copy of the Order sent to Sing Sing was returned with the notation "paroled" on the envelope, the copy sent to the halfway house was not returned as undeliverable.

Plaintiff did not comply with my September 24 Order nor did he contact me seeking more time to comply. A subsequent Order directing defendants to make the present motion (Docket Item 45) was sent to plaintiff at both the Queens halfway house and Sing Sing. Both were returned as undeliverable.

III. Analysis

Fed.R.Civ.P. 41(b) provides 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 or any claim against it. 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 ...


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