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Hurd v. Porter

United States District Court, N.D. New York

January 8, 2014

WARREN HURD, Plaintiff,
v.
MS. PORTER, Mental Health Doctor, Mid-State Correctional Facility; et al., Defendants.

WARREN HURD, Pro Se, 10-B-1548, Coxsackie Correctional Facility, Coxsackie, NY, for Plaintiff.

RICHARD LOMBARDO, ESQ., Assistant Attorney General.

HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, Albany, NY, for Defendants.

REPORT AND RECOMMENDATION

DAVID E. PEEBLES, Magistrate Judge.

Pro se plaintiff Warren Hurd, a former New York State prison inmate, and whose whereabouts are not currently known to the court, has commenced this action in forma pauperis against two mental health professionals employed at the prison facility in which he was confined at all relevant times, pursuant 42 U.S.C. § 1983, alleging the deprivation of his civil rights. In his complaint, plaintiff asserts a deliberate medical indifference claim arising from allegations that the defendants discontinued his sleeping medication and failed to provide adequate mental health care during his confinement at the Mid-State Correctional Facility in 2010 and 2011.

Currently pending before the court is a motion to dismiss the action brought by the defendants based on plaintiff's failure to notify the court of a change of address pursuant to the local rules of practice for this court. For the reasons set forth below, I recommend that defendants' motion be granted.

I. BACKGROUND

Plaintiff commenced this action on November 25, 2011, and subsequently filed an amended complaint on January 30, 2012. Dkt. Nos. 1, 5. Following the joinder of issue and the close of discovery, defendants moved for summary judgment, arguing that plaintiff's claims are precluded based upon his failure to exhaust available administrative remedies before commencing suit. Dkt. No. 28. Plaintiff failed to respond to that motion. On October 29, 2013, I issued a report recommending that defendants' motion for summary judgment be denied without prejudice to renewal. Dkt. No. 31. A copy of that report and recommendation was mailed to the plaintiff but was returned to the court on November 4, 2013, as undeliverable with a notation "released 3-8-13." Dkt. No. 32.

On December 20, 2013, defendants moved to dismiss plaintiff's complaint based upon his failure to notify the court and defendants of his change of address.[1] Dkt. No. 33. Upon the filing of that motion, the court set a deadline of January 6, 2014, for the filing of any response by plaintiff in opposition. Id. Although that deadline has now passed, the court has received no opposition from or on behalf of plaintiff. See generally Docket Sheet. Defendants' dismissal motion, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. §§ 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed.R.Civ.P. 72(b).

II. DISCUSSION

In support of their motion, defendants argue that plaintiff's complaint should be dismissed because rule 10.1(c)(2) of the local rules of practice for this court provide that " pro se litigants must immediately notify the Court of any change of address." N.D.N.Y. L.R. 10.1(c)(2) (emphasis in original). Additionally, defendants contend that dismissal is appropriate because District Judge Mae A. D'Agostino, in an order dated February 16, 2012, directed that plaintiff

promptly notify the Clerk's office and opposing counsel (in writing) of any change in his address; his failure to do so will result in the dismissal of this action.

Dkt. No. 6 at 4 (emphasis in original).

As an initial matter, under local rule 7.1(b)(3), plaintiff has effectively consented to the granting of defendants' motion. That rule provides as follows:

Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as this Rule requires shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause is shown.

N.D.N.Y. L.R. 7.1(b)(3). In this case, plaintiff has not responded to defendants' motion; the motion was properly filed by the defendants; and defendants, through their motion, have met their burden of demonstrating entitlement to the relief requested. With respect to the third inquiry ( i.e., whether defendants have met their burden), defendants'"burden of persuasion is lightened such that, in order to succeed, [their] motion need only be facially meritorious.'" See Rodriguez v. Goord, No. 04-CV-0358, 2007 WL 4246443, at *1 (Scullin, J., adopting report and recommendation by Lowe, M.J.) (finding that whether a movant has met its burden to demonstrate entitlement to a dismissal under local rule 7.1(b)(3) "is a more limited endeavor than a review of a contested motion to dismiss" (citing cases)).[2] Because defendants have accurately cited proper legal authority for the basis of their motion, and plaintiff has, indeed, failed to respond in opposition to their motion to dismiss, I find that defendants' motion is facially meritorious. Accordingly, I recommend that the court grant defendants' motion to dismiss on this basis.

Even assuming, however, that defendants have not met their burden on their motion to dismiss, the court is authorized to dismiss plaintiff's complaint under the circumstances now presented. Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its discretion, order dismissal of an action based on a plaintiff's failure to comply with an order of the court.[3] Fed.R.Civ.P. 41(b); Rodriguez, 2007 WL 4246443, at *2. That discretion should be exercised when necessary to "achieve the orderly and expeditious disposition of cases." Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962); Williams v. Faulkner, No. 95-CV-0741, 1998 WL 278288, at *2 (N.D.N.Y. May 20, 1998) (Pooler, J., adopting report and recommendation by Scanlon, M.J.); Moshier v. Trabout, No. 96-CV-1666, 1998 WL 167298, at *1 (N.D.N.Y. Apr. 2, 1998) (Pooler, J. adopting report and recommendation by Hurd, M.J.).

As was previously noted, in this case, Judge D'Agostino issued an order, on February 6, 2012, that directed plaintiff to promptly notify the court of any change to his address. Dkt. No. 6 at 4. That order is reinforced by local rule 10.1(c)(2), which provides that "[a]ll... pro se litigants must immediately notify the Court of any change of address." N.D.N.Y. L.R. 10.1(c)(2) (emphasis omitted). In this respect, one court in this district has noted that

[i]t is neither feasible nor legally required that the clerks of the district courts undertake independently to maintain current addresses on all parties to pending actions. It is incumbent upon litigants to inform the clerk of address changes, for it is manifest that communications between the clerk and the parties or their counsel will be conducted principally by mail. In addition to keeping the clerk informed of any change of address, parties are obliged to make timely status inquiries. Address changes normally would be reflected by those inquiries if made in writing.

Dansby v. Albany Cnty. Corr. Facility, No. 95-CV-1525, 1996 WL 172699, at *1 (N.D.N.Y. Apr. 10, 1996 (Pooler, J.) (quotation marks omitted).

The court has not received any communication from plaintiff in this matter since January 30, 2012, when he filed a change of address with the court, indicating that he was aware of his obligation to notify the court and his adversaries of such change. Dkt. No. 26. Since that time, the court and defendants have been unable to reach him. See, e.g., Dkt. Nos. 32, Dkt. No. 33-1 at ¶ 3. According to the declaration of Sethann Bogardus, the Inmate Records Coordinator at Coxsackie Correctional Facility (the place of plaintiff's last known location), plaintiff was released from the custody of the New York State Department of Corrections and Community Supervision on March 8, 2013. Dkt. No. 33-2 at ¶¶ 2, 3. In light of plaintiff's failure to notify the court or defendant's counsel of his new address, which violates both a court order and local rules of this court, I recommend that the action be dismissed.[4]

III. SUMMARY AND RECOMMENDATION

Plaintiff has not communicated with the court regarding this action in nearly a year. His failure to notify the court with an updated address following his release from prison violates both orders issued in this matter by Judge D'Agostino, as well as local rules of practice for this court. Quite obviously, the action cannot proceed without plaintiff's participation. Accordingly, it is hereby respectfully

RECOMMENDED that defendants' motion to dismiss, Dkt. No. 33, be GRANTED.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).

It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.

Jose Rodriguez, Willard, NY, pro se.

Andrew M. Cuomo, Attorney General of the State of New York, David L. Cochran, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.

DECISION AND ORDER

FREDERICK J. SCULLIN, Senior District Judge.

*1 The above-captioned matter having been presented to me by the Report-Recommendation of Magistrate Judge George H. Lowe filed November 6, 2007, and the Court having reviewed the Report-Recommendation and the entire file in this matter, and no objections to said Report-Recommendation having been filed, the Court hereby

ORDERS, that Magistrate Judge Lowe's November 6, 2007 Report-Recommendation is ACCEPTED in its entirety for the reasons stated therein; and the Court further

ORDERS, that Defendants' motion, pursuant to Local Rule 41.2(b), to dismiss for Plaintiff's failure to provide notice to the Court of a change of address, is GRANTED; and the Court further

ORDERS, that the Clerk of the Court enter judgment in favor of the Defendants and close this case.

IT IS SO ORDERED.

REPORT-RECOMMENDATION

GEORGE H. LOWE, United States Magistrate Judge.

This pro se prisoner civil rights action, filed pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Frederick J. Scullin, Jr., Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c) of the Local Rules of Practice for this Court. Generally, Jose Rodriguez ("Plaintiff") alleges that, while he was an inmate at Oneida Correctional Facility in 2003 and 2004, ten employees of the New York State Department of Correctional Services ("Defendants") were deliberately indifferent to his serious medical needs, and subjected him to cruel and unusual prison conditions, in violation of the Eighth Amendment. (Dkt. No. 27 [Plf.'s Am. Compl.].) Currently pending is Defendants' motion to dismiss for failure to provide notice to the Court of a change of address, pursuant to Local Rule 41.2(b) of the Local Rules of Practice for this Court. (Dkt. No. 86.) Plaintiff has not opposed the motion, despite having been given more than six weeks in which to do so. Under the circumstances, I recommend that (1) Defendants' motion to dismiss be granted, and (2) in the alternative, the Court exercise its inherent authority to sua sponte dismiss Plaintiffs Amended Complaint for failure to prosecute and/or failure to comply with an Order of the Court.

I. DEFENDANTS' MOTION TO DISMISS

Under the Local Rules of Practice for this Court, Plaintiff has effectively "consented" to the granting of Defendants' motion to dismiss, since (1) he failed to oppose the motion, (2) the motion was properly filed, and (3) Defendants have, through the motion, met their burden of demonstrating entitlement to the relief requested in the motion. L.R. 7.1(b)(3).

In particular, with regard to this last factor (i.e., that Defendants have met their burden of demonstrating entitlement to the relief requested), Defendants argue that their motion to dismiss should be granted because (1) Local Rule 41.2(b) provides that "[f]ailure to notify the Court of a change of address in accordance with [Local Rule] 10.1(b) may result in the dismissal of any pending action, " (2) on April 15, 2004, Plaintiff was specifically advised of this rule when (through Dkt. No. 5, at 4) the Court advised Plaintiff that "his failure to [promptly notify the Clerk's Office and all parties or their counsel of any change in his address] will result in the dismissal of his action, " (3) on May 22, 2007, Plaintiff was released from the Willard Drug Treatment Center, (4) since that time, Plaintiff has failed to provide notice to the Court (or Defendants) of his new address, as required by Local Rule 10.1(b)(2), and (5) as a result of this failure, Defendants have been prejudiced in that they have been unable to contact Plaintiff in connection with this litigation (e.g., in order to depose him, as authorized by the Court on May 4, 2007). (Dkt. No. 86, Part 4, at 1-2 [Defs.' Mem. of Law].)

*2 Authority exists suggesting that an inquiry into the third factor (i.e., whether a movant has met its "burden to demonstrate entitlement" to dismissal under Local Rule 7.1[b][3]) is a more limited endeavor than a review of a contested motion to dismiss.FN1 Specifically, under such an analysis, the movant's burden of persuasion is lightened such that, in order to succeed, his motion need only be "facially meritorious."FN2 Given that Defendants accurately cite the law and facts in their memorandum of law, I find that they have met their lightened burden on their unopposed motion. Moreover, I am confident that I would reach the same conclusion even if their motion were contested.

FN1 See, e.g., Hernandez v. Nash, 00-CV-1564, 2003 U.S. Dist. LEXIS 16258, at *7-8, 2003 WL 22143709 (N.D.N.Y. Sept. 10, 2003) (Sharpe, M.J.) (before an unopposed motion to dismiss may be granted under Local Rule 7.1[b][3], "the court must review the motion to determine whether it is facially meritorious ") [emphasis added; citations omitted]; Race Safe Sys. v. Indy Racing League, 251 F.Supp.2d 1106, 1109-10 (N.D.N.Y.2003) (Munson, J.) (reviewing whether record contradicted defendant's arguments, and whether record supported plaintiff's claims, in deciding unopposed motion to dismiss, under Local Rule 7.1[b][3]); see also Wilmer v. Torian, 96-CV-1269, 1997 U.S. Dist. LEXIS 16345, at *2 (N.D.N.Y. Aug. 29, 1997) (Hurd, M.J.) (applying prior version of Rule 7.1 [b][3], but recommending dismissal because of plaintiff's failure to respond to motion to dismiss and the reasons set forth in defendants' motion papers), adopted by 1997 U.S. Dist. LEXIS 16340, at *2 (N.D.N.Y. Oct. 14, 1997) (Pooler, J.); accord, Carter v. Superintendent Montello, 95-CV-0989, 1996 U.S. Dist. LEXIS 15072, at *3 (N.D.N.Y. Aug. 27, 1996) (Hurd, M.J.), adopted by 983 F.Supp. 595 (N.D.N.Y.1996) (Pooler, J.).
FN2 See, e.g., Hernandez, 2003 U.S. Dist. LEXIS 1625 at *8.

For these reasons, I recommend that the Court grant Defendants' motion to dismiss.

II. SUA SPONTE DISMISSAL

Even if Defendants have not met their burden on their motion to dismiss, the Court possesses the inherent authority to dismiss Plaintiff's Amended Complaint sua sponte under the circumstances. Rule 41 of the Federal Rules of Civil Procedure permits a defendant to move to dismiss a proceeding for (1) failure to prosecute the action and/or (2) failure to comply with the Federal Rules of Civil Procedure or an Order of the Court. Fed.R.Civ.P. 41(b).FN3 However, it has long been recognized that, despite Rule 41 (which speaks only of a motion to dismiss on the referenced grounds, and not a sua sponte order of dismissal on those grounds), courts retain the "inherent power" to sua sponte "clear their calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief." Link v. Wabash R.R. Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); see also Saylor v. Bastedo, 623 F.2d 230, 238 (2d Cir.1980); Theilmann v. Rutland Hospital, Inc., 455 F.2d 853, 855 (2d Cir.1972). Indeed, Local Rule 41.2(a) not only recognizes this authority but requires that it be exercised in appropriate circumstances. See N.D.N.Y. L.R. 41.2(a) ("Whenever it appears that the plaintiff has failed to prosecute an action or proceeding diligently, the assigned judge shall order it dismissed.") [emphasis added].

FN3 Fed.R.Civ.P. 41(b) (providing, in pertinent part, that "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of ...

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