United States District Court, N.D. New York
BRANDON LEE, Plaintiff Pro Se, Amityville, New York.
KEVIN M. HAYDEN, ESQ., Assistant Attorney General.
HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, Albany, New York, Attorney for Defendant.
REPORT-RECOMMENDATION AND ORDER 
CHRISTIAN F. HUMMEL, Magistrate Judge.
Plaintiff pro se Brandon Lee ("Lee"), an inmate formerly in the custody of the New York Department of Corrections and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendant Michael Graziano ("Graziano"), the superintendent of Greene Correctional Facility, violated his constitutional rights under the Eighth Amendment. Am. Compl. (Dkt. No. 13). Presently pending is Graziano's motion to dismiss Lee's amended complaint with prejudice pursuant to Fed.R.Civ.P. 41(b), 37(d) and N.D.N.Y.L.R. 10.1(c)(2), 41.2(b). Dkt. No. 32. Graziano failed to respond to the motion. For the following reasons, it is recommended that defendants' motion be granted.
The specific facts of the case are set forth in the Report-Recommendation and Order filed July 9, 2013, familiarity with which is assumed. See Dkt. No. 25 (Report-Recommendation); Dkt. No. 27 (Order adopting Report-Recommendation).
On June 18, 2012, Lee commenced this § 1983 action against Graziano. Dkt. No. 1. By letter dated September 8, 2012, Lee advised the Court that he was transferred from Greene Correctional Facility to Cayuga Correctional Facility. Dkt. No. 10.
On September 25, 2012, the Court issued an order granting IFP status to Lee, stating, "[p]laintiff is also required to notify the Clerk's Office and all parties or their counsel promptly, in writing, of any change in [plaintiff's] address; his failure to do so will result in the dismissal of this action." Dkt. No. 12 at 11-12 (emphasis in original). On the same day, the Court accepted Lee's amended complaint. Dkt. No. 13.
On October 23, 2012, Graziano filed an answer. Dkt. No. 17. The Court issued a Mandatory Pretrial Discovery and Scheduling Order ("Scheduling Order") that was served on Lee by mail and granted Graziano the right to depose Lee. Dkt. No. 18. The Scheduling Order stated, "[t]he failure of the plaintiff(s) to attend, be sworn, and answer appropriate questions may result in sanctions, including dismissal of the action pursuant to Fed.R.Civ.P. 37." Id. at 4.
On October 19, 2012, Lee advised the Court that he was transferred to Livingston Correctional Facility. Dkt. No. 19.
On October 26, 2012, Graziano filed a motion for judgment on the pleadings. Dkt. No. 20. Lee responded to that motion by letter dated November 5, 2012. Dkt. No. 22. On December 3, 2012, Lee was released from DOCCS's custody. By letter dated December 10, 2012, Lee advised the Court that his operative address is 6 Rainbow Lane, Amityville, New York 11701. Dkt. No. 24.
On August 15, 2013, the Court denied Graziano's motion for judgment on the pleadings and ordered that Lee had thirty days from the date of the order to file a second amended complaint alleging an Americans with Disabilities Act ("ADA"). Dkt. No. 27 at 2. Lee never filed a second amended complaint alleging an ADA claim.
By Text Notice dated October 9, 2013, the Court notified all parties of a pretrial conference scheduled for October 24, 2013 and served a copy of the notice by mail to Lee at his address on file. Text Notice 10/09/2013. On October 24, 2013, Lee failed to appear at the pretrial conference. Text Minute Entry dated 10/24/2013. Lee was notified by mail of a status conference scheduled for December 9, 2013. Id.
On October 25, 2013, Graziano's counsel served mandatory discovery documents on Lee. Hayden Decl. (Dkt. No. 32-1) ¶ 17; Dkt. No. 32-2 at 1. On the same day, the Court issued an order directing that "attendance of all parties is REQUIRED at the December 9, 2013 conference." Dkt. No. 30 at 2 (emphasis in original). Lee was further advised that, "pursuant to Local Rule 41.2 for the Northern District of New York the failure to attend Court conferences will result in dismissal of the action. If this action is dismissed [Lee] will be unable to seek recovery of any of the incidents or claims set forth in the amended complaint." Id.
On November 15, 2013, Graziano's counsel served Lee with a Notice of Deposition, requiring Lee to appear at the Attorney General's Office on December 5, 2013. Hayden Decl. ¶ 19; Dkt. No. 32-3 at 1 (notice of deposition). The Notice of Deposition states, "[f]ailure to appear at the deposition will result in Defendant making a motion to dismiss the case." Dkt. No. 32-3 at 1. However, Lee neither appeared for the deposition nor notified defense counsel of his intent to not appear; as a result, the Attorney General s Office incurred a $75.00 court reporter fee. Hayden Decl. ¶¶ 20-21; Dkt. Nos. 32-4 (deposition transcript noting date, time, and Lee's absence, 32-5 (invoice).
On December 9, 2013, Lee failed to appear for the scheduled status conference before the undersigned. Text Minute Entry dated 12/09/2013. On February 13, 2014, Graziano filed the present motion and served it on Lee at the address on file. Dkt. Nos. 32, 32-1 (affidavit of service).
A. Federal Rule of Civil Procedure 41
Federal Rule of Civil Procedure 41(b) provides that a court may dismiss an action "[i]f the plaintiff fails to prosecute or comply with [the Federal Rules of Civil Procedures] or a court order...." FED. R. CIV. P. 41(b); see Link v. Wabash R.R. Co. , 370 U.S. 626, 629 (1962); MTV Networks v. Lane , 998 F.Supp. 390, 393 (S.D.N.Y. 1998); see also N.D.N.Y.L.R. 41.2(b).
Since a Rule 41(b) dismissal is a "harsh remedy... [it] is appropriate only in extreme situations." Lucas v. Miles , 84 F.3d 532, 535 (2d Cir. 1996) (citations omitted). Furthermore, where the plaintiff is pro se, "courts should be especially hesitant to dismiss for procedural deficiencies....'" Spencer v. Doe , 139 F.3d 107, 112 (2d Cir. 1998) (quoting Lucas , 84 F.3d at 535); see also Triestman v. Fed. Bureau of Prisons , 470 F.3d 471, 477 (2d Cir. 2006). To determine whether dismissal for failure to prosecute is appropriate, courts should consider:
(1) the duration of 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 defendant is likely to be prejudiced by further delay... (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; see also Lewis v. Rawson , 564 F.3d 569, 576 (2d Cir. 2009) (citations omitted).
A review of this case's procedural history shows that Lee's inactivity began after December 10, 2012, when he notified the Court that his operative address is 6 Rainbow Lane, Amityville, New York 11701. Dkt. No. 24. While Lee was able to file three Notices of Change of Address, he has failed to respond to Graziano's instant motion. Lee also failed to appear for a deposition on December 5, 2013 and two court conferences on October 24, 2013 and December 9, 2013, despite repeated warnings about the consequences of non-participation by both Graziano and the Court. Specifically, Lee was on notice that failure to comply and participate may result in the dismissal of this action. Thus, for at least the past fourteen months, Lee has not communicated with the Court nor Graziano in any manner. Further, none of the court notices sent to Lee was returned and Lee never notified the Court of his inability to attend court conferences. A search of DOCCS's inmate population information database shows that Lee remains released from DOCCS's custody. See note 2 supra. Given Lee's failure to respond to Graziano's motion, ...