United States District Court, S.D. New York
Terry Holcombe, Plaintiff, Pro se, East Elmhurst, N.Y. USA.
For Correction Capt. Skupien, The City of New York, Defendants: Brian Jeremy Farrar, LEAD ATTORNEY, NYC Law Department, New York, N.Y. USA; Lamar Devaughn Winslow, LEAD ATTORNEY, New York City Law Department, New York, N.Y. USA.
JAMES L. COTT, United States Magistrate Judge. Honorable Paul A. Crotty, United States District Judge.
REPORT AND RECOMMENDATION
JAMES L. COTT, United
States Magistrate Judge.
Defendants in this § 1983 action move to dismiss with prejudice pro se plaintiff Terry Holcombe's action for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that the Court grant defendants' motion, except that Holcombe's case be dismissed without prejudice.
Holcombe, using the Court's form complaint for cases brought under 42 U.S.C. § 1983, initiated this action on February 28, 2014, alleging that his constitutional rights were violated as a result of being designated a member of the " Security Risk Group" while incarcerated at the Eric M. Taylor Center at Rikers Island. Compl., ¶ ¶ 1-4 (Dkt. No. 2). Holcombe alleges that he first learned of his " Security Risk Group" designation on February 14, 2014, when he was subject to a search for prisoners within the " Security Risk Group" only. Id. at ¶ 1.
On March 24, 2014, Judge Crotty referred this case to me for general pretrial supervision and for a report and recommendation on any dispositive motions. (Dkt. No. 6). Following the filing of defendants' answer, the Court held an initial pre-trial conference on June 17, 2014, at which Holcombe appeared via telephone because he was incarcerated. (Dkt. Nos. 11, 13). At this conference, Holcombe reported that he might be released prior to October 30, 2014, when the Court intended to hold a post-discovery status conference. Accordingly, the Court ordered that, if Holcombe was released from custody before October 30, he would be required to attend the status conference in person. (Dkt. No. 13).
Due to a conflict in the Court's calendar, the October 30, 2014 conference was rescheduled to October 31. (Dkt. No. 14). The Court mailed the rescheduling order to Holcombe at the Rikers Island address on file with the Court; however, the order, dated September 23, was returned as undeliverable. Defendants' counsel then provided the Court with Holcombe's last known address as maintained by the New York City Department of Correction (" NYC DOC") (Dkt. No. 15), and the Court mailed copies of its June 17 order scheduling the October 30 conference (Dkt. No. 13) as well as its September 23 rescheduling order (Dkt. No. 14) to that address. After Holcombe did not appear at the October 31 status conference, the Court issued an order adjourning the conference to November 14, 2014 and warned Holcombe that if he failed to appear a second time, the Court would recommend that his case be dismissed for failure to prosecute. (Dkt. No. 16).
The order scheduling the November 14 conference was also returned to the Court as undeliverable to Holcombe. The Court then adjourned the conference sine die and invited defendants to move to dismiss the case for failure to prosecute. (Dkt. No. 17). Thereafter, in reviewing the record, the Court discovered a typographical error in the address it had used for Holcombe to transmit the order scheduling the November 14 conference. Accordingly, the Court issued another order dated November 21, 2014 to the correct address and rescheduled the conference for December 2, 2014. (Dkt. No 19). In this November 21 order, which has not been returned to the Court, the Court explicitly warned Holcombe that his failure to appear would result in a recommendation that his case be dismissed for failure to prosecute. On December 2, Holcombe again failed to appear, and the Court adjourned the conference after waiting for Holcombe for more than 30 minutes.
Before the December 2 conference, by letter motion dated November 19, 2014, defendants moved to dismiss Holcombe's case for failure to prosecute pursuant to Rule 41(b). (Dkt. No. 18). Holcombe has not filed any response in opposition to the motion.
A. Legal Standard
A plaintiff has the duty to diligently advance his case, and if he fails to do so, a court may dismiss the action under Federal Rule of Civil Procedure 41(b) for failure to prosecute. See Hardaway v. Agyemong, 572 F.App'x 11, 12 (2d Cir. 2014); United States ex rel. Pervez v. Maimonides Med. Ctr., 415 F.App'x 316, 317 (2d Cir. 2011) (citing Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982)). Pursuant to Rule 41(b), a court may dismiss an action where the plaintiff " fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order." While a court generally must be solicitous of pro se litigants, particularly with respect to procedural issues, see Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996), even unrepresented plaintiffs must comply with court orders and diligently prosecute their cases; their failure to do so may constitute grounds for dismissal. See Yadav v. Brookhaven National Laboratory, 487 F.App'x 671, 672 (2d Cir. 2012); LeSane v. Hall's Sec. Analyst Inc., 239 F.3d 206, 209 (2d Cir. 2001). A pro se plaintiff's failure to maintain an accurate address with the court may ...