The opinion of the court was delivered by: Thomas J. McAvoy, Sr. U.S. District Judge
Plaintiff moves pursuant to Fed. R. Civ. P. 59(e) for reconsideration of that much of the Court's September 12, 2012 Decision and Order that denied his Fed. R. Civ. P. 60(b) motion. Dkt. # 34. Defendant has opposed the motion. Dkt. # 35. For the reasons that follow, the motion is denied.
a. Commencement of the Action
Plaintiff, originally proceeding pro se and formerly an inmate in the custody of the New York State Department of Correctional and Community Supervision ("DOCCS"), commenced this action on April 20, 2011. See Compl. dkt. # 1. The action was brought pursuant to 42 U.S.C. § 1983 and alleged that Defendant Warner, a nurse employed by DOCCS, violated Plaintiff's constitutional rights under the Eighth Amendment by failing to provide proper medical treatment after Plaintiff smashed his finger in a door while incarcerated at Bare Hill Correctional Facility. Compl. Dkt. # 1. On April 21, 2011, the Court issued an order directing Santana to either prepay the filing fee of $350.00 in full or provide the clerk with a signed authorization form for $350.00 within 30 days of the filing date of that Order. Santana provided the inmate authorization form on May 13, 2011, and on the same date moved for leave to proceed in forma pauperis. Dkt. # 5, # 6. The Court granted the in forma pauperis motion on July 22, 2011, and in that Order stated, inter alia:
Plaintiff must comply with any requests by the Clerk's Office for any documents that are necessary to maintain this action. All parties must comply with Local Rule 7.1 of the Northern District of New York in filing motions. Plaintiff is also required to promptly notify the Clerk's Office and all parties or their counsel of any change in his address; plaintiff's failure to do so will result in the dismissal of this action. see Dkt. # 7 (emphasis in original).
On August 19, 2011, Warner answered the Complaint, Dkt. # 10, and, on August 29, 2011, Warner moved for summary judgment pursuant to Fed. R. Civ. P. 56. See Dkt. # 12. The summary judgment motion was referred to the Hon. David R. Homer, United States Magistrate Judge, for a Report-Recommendation pursuant 28U.S.C. § 636(b) and Local Rules 72.3(c). Santana failed to respond to the motion.
On September 7 and September 8, 2011, the Court received back as "undeliverable" five pieces of mail sent to Plaintiff at his correctional facility address. See dkt. # 17 - # 21. None of these were the July 22, 2011 Order that addressed the in forma pauperis application. On November 29, 2011, Magistrate Judge Homer issued his Report- Recommendation and Order on Defendant's motion for summary judgment. See dkt. # 22. Magistrate Judge Homer recommended that Plaintiff's action be dismissed pursuant to Federal Rule of Civil Procedure 41(b) and N.D.N.Y.L.R. 41.2(a) because Santana failed to communicate with opposing counsel or the Court for seven months prior to the filing of the summary judgment motion,*fn1 and failed to comply with Local Rule 10.1(c) (2).*fn2 Upon reviewing the Report-Recommendation and Order, and absent objection from Plaintiff, the Court adopted Magistrate Judge Homer's recommendation and granted the motion for summary judgment thereby dismissing the Complaint in its entirety. See /26/12 Dec. & Ord., dkt. # 24; see also 1/26/12 Judgment, dkt. # 25.
c. Rule 60(b) Motion, or, in the alternative, to Declare Dismissal was Without Prejudice Plaintiff then moved, through counsel, for an order pursuant to Rule 60(b)(1) and (6) to vacate the dismissal and allow Plaintiff to proceed with the action.*fn3 Dkt. # 27. In the alternative, Plaintiff sought an order declaring that the dismissal was without prejudice so that Plaintiff could file a new action. Id. The basis for the motion was, essentially, that Plaintiff started his action while he was incarcerated with the aid of "jailhouse lawyers," and that due to Plaintiff's limited understanding of the English language and the fact that he was released from incarceration shortly after the Defendant answered the complaint, he did not know: (a) that a summary judgment motion had been made; (b) that a decision had been rendered dismissing his case, and (c) that he was required to provide the Court and opposing counsel with a forwarding address upon his release from incarceration. Id. The Court considered the Rule 60(b)(1) portion of the motion under the four "excusable neglect" factors set forth in Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 395, 113 S. Ct. 1489, 123 L. Ed.2d 74 (1993), and held:
Inasmuch as three of the four Pioneer factors tip in Defendant's favor, including the third Pioneer factor, the Court finds that Plaintiff has failed to establish excusable neglect sufficient to vacate the judgment pursuant to Fed. R. Civ. P. 60(b)(1). 9/12/12 Dec. and Ord. p. 9. dkt. # 33. The Court also found no basis to vacate the judgment under Fed. R. Civ. P. 60(b)(6). Id. pp. 9-10.
On the nature of the dismissal, the Court ruled that the Fed. R. Civ. P. 41(b) dismissal was "with prejudice." See id. p. 10 (citing Fed. R. Civ. P. 41(b);*fn4 Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505--07 (2001) (An "adjudication on the merits" pursuant to Rule 41(b) operates to "bar the plaintiff from returning later, to the same court, with the same underlying claim."); Storey v. O'Brien, 2012 WL 1889408, at *1 (2d Cir. May 25, 2012)("[S]ince an adjudication on the merits, Fed. R. Civ. P. 41(b), is the functional equivalent of an ...