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Applewhite v. Sheahan

United States District Court, Second Circuit

July 8, 2013

CHRIS APPLEWHITE, Plaintiff,
v.
CAPTAIN MICHAEL SHEAHAN, et al., Defendants.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

On January 11, 2013, Defendants' motion for summary judgment dismissing the pro se complaint filed by Plaintiff was granted in part and denied in part. (Dkt #64) (Siragusa, D.J.). On February 5, 2013, Magistrate Judge Payson gave notice of a scheduling conference pursuant to Federal Rule of Civil Procedure ("F.R.C.P.") 16 for April 9, 2013, at which Defendants' attorney appeared by telephone. Plaintiff did not appear. (Dkt #73). The conference was rescheduled for May 14, 2013, and Plaintiff was advised that his failure to appear would result in the issuance of an Order to Show Cause why the case should not be dismissed for failure to prosecute. On May 14, 2013, Defendants' attorney appeared by telephone, but Plaintiff did not appear. (Dkt #75).

On May 15, 2013, Magistrate Judge Payson directed Plaintiff to show cause in writing why this case should not be dismissed, pursuant to F.R.C.P. 41(b), based upon his failure to prosecute. (Dkt #74). Plaintiff was advised that his failure to respond to the Order to Show Cause by May 31, 2013, would result in the recommendation of dismissal of his complaint with prejudice pursuant to F.R.C.P. 41(b). (Id.). The deadline set forth in Magistrate Judge Payson's Order to Show Cause has passed, and Plaintiff has failed to respond to the Order or otherwise communicate with the Court.

On June 19, 2013, Magistrate Judge Payson issued a Report and Recommendation ("the R&R") (Dkt #77) recommending that Plaintiff's Complaint be dismissed, without prejudice, pursuant to F.R.C.P. 41(b). Also on June 19, 2013, this matter was transferred to the undersigned. (Dkt #76).

Plaintiff has not filed any objections to the R&R, and the time to do so has passed. For the reasons that follow, the R&R is adopted in part and rejected in part.

II. Standard of Review

Where, as here, no objection is made to a report and recommendation, only "clear error" review is required. FED. R. CIV. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a "clear error" review, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Id . After conducting the appropriate review, the district judge may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. ยง 636(b) (1)(C).

III. Discussion

Dismissal of a case for failure to prosecute is authorized by F.R.C.P. 41(b), which provides that the district court may dismiss an action when the plaintiff fails to comply with the Federal Rules of Civil Procedure or with any order issued by the court. FED. R. CIV. P. 41(b); see also Lucas v. Miles , 84 F.3d 532, 534-35 (2d Cir. 1996). Involuntary dismissal under F.R.C.P. 41(b) "is a harsh sanction and is appropriate only in extreme situations." Lucas , 84 F.3d at 535 (citing Alvarez v. Simmons Market Research Bureau, Inc. , 839 F.2d 930, 932 (2d Cir. 1988)). The Second Circuit has cautioned district courts to "be especially hesitant to dismiss for procedural deficiencies where... the failure is by a pro se litigant." Id . (citing Minnette v. Time Warner , 997 F.2d 1023, 1027 (2d Cir. 1993)).

The Second Circuit has outlined the factors to be considered when determining whether a pro se litigant's case should be dismissed under F.R.C.P. 41(b), none of which is dispositive:

(1) the duration of the plaintiff's failure to comply with the court order, (2) whether [the] plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are likely to be prejudiced by further delay in the proceedings, (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal.

Lucas , 84 F.3d at 535 (citation omitted).

In examining the "delay" factor, courts consider whether the failures to prosecute were caused by plaintiff and whether they were of significant duration. United States ex rel. Drake v. Norden Systems, Inc. , 375 F.3d 248, 255 (2d Cir. 1994). Plaintiff's delinquency began over two months ago, on April 9, 2013, when he failed to appear for a scheduling conference, as to which he had received notice ...


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