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Wellington v. Langendorf

United States District Court, N.D. New York

January 5, 2015

ERIC WELLINGTON, Plaintiff,
v.
B. LANGENDORF, Corrections Officer, Defendant.

ERIC WELLINGTON, Pro Se, Attica Correctional Facility, Attica, NY, for plaintiff.

HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, CHRISTOPHER W. HALL, ESQ., Assistant Attorney General, Albany, NY, for Defendant.

REPORT AND RECOMMENDATION

DAVID E. PEEBLES, Magistrate Judge.

Pro se plaintiff Eric Wellington, a New York State prison inmate, commenced this action, pursuant to 42 U.S.C. § 1983, claiming that his civil rights were violated by a number of individuals. Through motion practice and the filing of an amended complaint, the sole surviving claim in the action stems from plaintiff's allegation that defendant B. Langendorf issued a misbehavior report to him in retaliation for his filing of grievances.

Currently pending before the court is defendant Langendorf's motion for summary judgment seeking dismissal of the remaining claim. For the reasons set forth below, I recommend that the motion be granted.

I. BACKGROUND[1]

Plaintiff is an inmate currently being held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). See generally Dkt. No. 12. At the times relevant to his claims, he was confined at the Shawangunk Correctional Facility ("Shawangunk"), located in Wallkill, New York. Id.

On April 5, 2011, plaintiff asked defendant Langendorf, a corrections officer employed at the facility, why the guards had not released his cell door to permit him to attend a daily meal and programming. Dkt. No. 12 at 3. In response, defendant Langendorf stated, "The reason [w]hy I didn't let you go out for porter's and gang is because I wanted too [sic] see your[] Black Snake, " interpreted by Wellington as a reference to his penis. Id. Later on that same day, plaintiff submitted a written complaint concerning the incident to Vernon Fonda, the DOCCS Chief of Investigations. Id. at 4; see also Dkt. No. 2 at 16-17.[2]

Two weeks later, on April 19, 2011, as plaintiff was exiting the prison barber shop, defendant Langendorf ordered him to stand against the wall and submit to a pat frisk pursuant to a facility policy requiring all inmates entering or exiting the barber shop to be pat-frisked in light of the potentially dangerous devices located there. Dkt. No. 12 at 2, 8; Dkt. No. 42-2 at 5. Plaintiff alleges that, while he stood facing toward the wall, defendant Langendorf rubbed the front of his body against Wellington's buttocks, making a grinding motion, while whispering in plaintiff's ear that he wanted to "see [plaintiff's] black snake." Dkt. No. 12 at 2, 8. Plaintiff filed another written complaint concerning defendant Langendorf's conduct on that same day with Richard Roy, Deputy Commissioner and Inspector General of the DOCCS. Dkt. No. 12 at 2; Dkt. No. 2 at 12-13. Plaintiff also filed a written complaint regarding the incident with John Maly, the Deputy Superintendent for Security at Shawangunk.[3] Dkt. No. 12 at 2-3.

As a result of the encounter between defendant Langendorf and plaintiff outside of the barber shop, defendant Langendorf issued a misbehavior report to plaintiff accusing him of creating a disturbance, interfering with an employee, and harassing an employee. Dkt. No. 12 at 4; Dkt. No. 2 at 19; Dkt. No. 42-2 at 6. Those charges were based upon defendant's claim that, on his way back to his housing unit, and while defendant Langendorf was processing other inmates through a metal detector, plaintiff began yelling obscenities toward him as he walked down the hall. Dkt. No. 42-2 at 2-3, 6. As a result of the commotion caused by plaintiff's conduct and the presence of other inmates in the area, defendant Langendorf was forced to stop processing inmates through the metal detector and direct them back into a sally port, while plaintiff continued to direct obscenities toward him. Id. at 3, 6.

A Tier II hearing was convened on May 4, 2011, to address the charges set forth in the misbehavior report.[4] Dkt. No. 42-2 at 9-13. Defendant Langendorf appeared and testified at the hearing, and answered questions posed by the plaintiff. Id. at 11-12. Plaintiff neither called any witnesses nor offered any evidence in his defense. Id. at 12. At the close of the hearing he was found guilty on all three counts, and was sentenced to a period of twenty-one days of keeplock confinement and a thirty-day loss of package, telephone, and commissary privileges.[5] Id.

II. PROCEDURAL HISTORY

Plaintiff commenced this action in the United States District Court for the Southern District of New York on or about August 10, 2011. Dkt. No. 2. His original complaint named five defendants, all of whom were alleged to be employed at Shawangunk. Dkt. No. 2 at 1-2. Following the transfer of the action to this district on September 21, 2011, Senior District Judge Frederick J. Scullin, Jr., reviewed plaintiff's complaint and determined that a response was required only from two defendants, but permitted plaintiff an opportunity to file an amended complaint to cure the deficiencies identified with the claims asserted against the other three defendants. Dkt. No. 8 at 8-9. Upon review of an amended complaint subsequently filed by the plaintiff, it was accepted for filing by Judge Scullin solely as to defendants Langendorf and Nelson, the only two defendants named, and plaintiff's claims against the other three defendants were dismissed without prejudice. Dkt. No. 16 at 2-3.

Defendants Langendorf and Nelson subsequently moved to dismiss plaintiff's claims against them, arguing that they failed to state a cause of action upon which relief may be granted. Dkt. No. 21. As a result of a report and recommendation issued by me on June 12, 2013, and a subsequent order issued by Judge Scullin on July 15, 2013, all of plaintiff's claims were dismissed with the exception of a retaliation cause of action asserted against defendant Langendorf. Dkt. Nos. 24, 28.

On May 28, 2014, following the close of discovery, defendant Langendorf moved for the entry of summary judgment dismissing plaintiff's remaining retaliation claim against him. Dkt. No. 42. Plaintiff has not responded to defendant's motion, which is now ripe for determination, and 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).

III. DISCUSSION

A. Consequences of Plaintiff's Failure to Respond

Pursuant to local rule 7.1(b)(3), a party who fails to oppose a properly filed motion effectively consents to the granting of the relief sought. 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); see also Jackson v. Fed. Express, 766 F.3d 189, 194 (2d Cir. 2014) (holding that the district courts may enter summary judgment in favor of the moving party where the non-moving party fails to respond in opposition, but not without first "ensur[ing] that each statement of material fact is support by record evidence sufficient to satisfy the movant's burden of production" and "determin[ing] whether the legal theory of the motion is sound").

In this case, plaintiff has not responded to defendant's motion. The motion was properly filed by defendant Langendorf, and, through his motion, he has met his burden of demonstrating entitlement to the relief requested. With respect to the question of whether defendant has met his burden, I note that his "burden of persuasion is lightened such that, in order to succeed, his 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)).[6] Because defendant Langendorf has accurately cited both proper legal authority and evidence in the record supporting the grounds upon which his motion is based, and plaintiff has failed to respond in opposition to the motion, I find that defendant's motion is facially meritorious. Jackson, 766 F.3d at 194. Accordingly, I recommend that the court grant defendant's motion on this basis.[7]

B. Summary Judgment Standard

Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material facts and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue, and the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250. When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the nonmoving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").

C. Analysis of Plaintiff's Retaliation Claim

Plaintiff alleges that defendant Langendorf retaliated against him for filing sexual harassment complaints against Langendorf by issuing him a baseless misbehavior report. Dkt. No. 12 at 5. Defendant maintains that no reasonable factfinder could conclude, based upon the record now before the court, that the misbehavior report was issued in response to those complaints. Dkt. No. 42-3 at 6-7.

When a prison official takes adverse action against a prisoner, motivated by the inmate's exercise of a constitutional right, including the free speech provisions of the First Amendment, a cognizable section 1983 retaliation claim lies. See Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000) ("In general, a section 1983 claim will lie where the government takes negative action against an individual because of his exercise of rights guaranteed by the Constitution or federal laws."). To prove unlawful retaliation, a plaintiff must establish that (1) he engaged in protected conduct, (2) the defendant took adverse action against him, and (3) there exists a causal connection between the protected activity and the adverse action. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007); Garrett v. Reynolds, No. 99-CV-2065, 2003 WL 22299359, at *4 (N.D.N.Y. Oct. 3, 2003) (Sharpe, M.J.). If a plaintiff carries his burden, "[t]he burden then shifts to the defendant to show that the plaintiff would have received the same punishment even absent the retaliatory motivation." Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (citing Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996)); accord, Holland v. Goord, 758 F.3d 215, 226 (2d Cir. 2014). "A defendant can meet this burden by demonstrating that there is no dispute that the plaintiff committed the most serious, if not all, of the prohibited conduct charged in the misbehavior report.' Gayle, 313 F.3d at 682 (quoting Hynes v. Squillace, 143 F.3d 653, 657 (2d Cir. 1998)).

In this case, plaintiff's amended complaint alleges that, as a result of the alleged sexual harassment by defendant Langendorf at his cell on April 5, 2011, and outside the barber shop on April 19, 2011, he filed complaints to DOCCS Chief of Investigations Fonda, Deputy Superintendent of Security Maly, and Deputy Commissioner and Inspector General Roy. Dkt. No. 12 at 4; Dkt. No. 2 at 16-17. Plaintiff further alleges that "as soon as [he] file[d] a complaint against [defendant] Langendorf[, ] [he] received a false misbehavior report" from defendant Langendorf. Dkt. No. 12 at 4; Dkt. No. 2 at 19.

It is well-settled that filing a grievance is constitutionally protected conduct. Johnson v. Eggersdorf, 8 F.Appx. 140, 144 (2d Cir. 2001); Graham, 89 F.3d at 80. It is also clearly established that, where a corrections officer has filed a false misbehavior report against a prisoner in retaliation for the prisoner filing a complaint against that same corrections officer, such conduct can satisfy the adverse action prong of the relevant test. See Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004) ("[The plaintiff] has sufficiently alleged... adverse action on the part of the defendants-the filing of false misbehavior reports[.]"). Plaintiff has therefore established two of the three elements required to support a cognizable retaliation cause of action.

Pivotal to plaintiff's retaliation claim, in this instance, is whether he can satisfy the third element by establishing the requisite causal connection between the protected activity and the adverse action - that is, that the protected conduct was a "substantial" or "motivating factor" in the defendant's decision to issue him a misbehavior report. Mount Healthy City Sch. Dist. Bd. of Educ., 429 U.S. at 287; Dillon, 497 F.3d at 251. When a retaliation claim is based upon the filing of a misbehavior report, "[t]he difficulty lies in establishing a retaliatory motive." Barclay v. N.Y., 477 F.Supp.2d 546, 558 (N.D.N.Y. 2007) (Hurd, J.). "More than mere conclusory allegations [regarding retaliatory motive] are required in order to survive a summary judgment motion." Barclay, 477 F.Supp.2d at 558 (citing Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)). The "[t]ypes of circumstantial evidence that can show a causal connection between the protected conduct and the alleged retaliation include temporal proximity, prior good discipline, a finding of not guilty at the disciplinary hearing, and statements by defendants as to their motives." Barclay, 474 F.Supp.2d at 558; see also Rivera v. Goord, 119 F.Supp.2d 327, 339 (S.D.N.Y. 2000).

Plaintiff claims that, during the eighteen months while he was confined at Attica, prior to the issuance of the disputed misbehavior report by defendant Langendorf, he did not receive any disciplinary complaints. Dkt. No. 12 at 4. At his disciplinary hearing, however, at which he was afforded the opportunity to present his case and confront defendant Langendorf and the evidence against him, plaintiff was found guilty of the offenses charged in the misbehavior report. Dkt. No. 42-2 at 8-13. Because plaintiff has not responded in opposition to defendant's motion for summary judgment, there is no record evidence suggesting that plaintiff did not, as asserted by defendant Langendorf, create a commotion on April 19, 2011, by yelling obscenties at the defendant, causing other inmates "to exit the sally port to see what the commotion was about." Dkt. No. 42-2 at 3. According to the defendant, plaintiff's conduct forced him "to stop processing inmates through the metal detector and direct the inmates back into the sally port." Id. By virtue of plaintiff's failure to respond to the motion, he has admitted that the charges lodged in the misbehavior report by defendant Langendorf were not baseless and that the misbehavior report would have been issued to plaintiff even absent the alleged retaliatory intent. The conclusory allegations contained in plaintiff's amended complaint regarding defendant Langendorf's retaliatory motive are not sufficient to overcome the undisputed evidence set forth by the defendant. See Houston v. Goord, No. 03-CV-1412, 2009 WL 890658, at *12 (Suddaby, J., adopting report and recommendation by Peebles, M.J.) (finding that the plaintiff's allegations regarding the temporal proximity between his protected conduct and the defendants' adverse action was not sufficient to create a genuine dispute of material fact in light of all of the evidence submitted by the defendants, which included, inter alia, affidavits from the defendants denying retaliatory animus).

Given these circumstances, I find that no reasonable factfinder could conclude that defendant's issuance of a misbehavior report to plaintiff, on April 19, 2011, was motivated by plaintiff's complaints against him, rather than his disruptive conduct on the day in question. I therefore recommend dismissal of plaintiffs remaining claim in this action.

IV. SUMMARY AND RECOMMENDATION

The sole remaining cause of action in this case alleges retaliation against defendant Langendorf based upon his issuance of a misbehavior report to plaintiff. Defendant Langendorf has submitted uncontroverted evidence that the misbehavior report was issued based upon plaintiff's conduct on April 19, 2011, and not because plaintiff filed sexual harassment complaints against him. Accordingly, it is hereby respectfully

RECOMMENDED that defendant's summary judgment motion (Dkt. No. 42) be GRANTED, and that plaintiff's amended complaint (Dkt. No. 12) be DISMISSED in its entirety.

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 Plaintiffs 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. Seat. 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.2 d 1106, 1109-10 (N.D.N.Y.2003) (Munson, J.) (reviewing whether record contradicted defendant's arguments, and whether record supported plaintiffs 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. LEX1S 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 plaintiffs 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. LEX1S 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 Plaintiffs 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 "[for failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant").

A. Failure to Prosecute

With regard to the first ground for dismissal (a failure to prosecute the action), it is within the trial judge's sound discretion to dismiss for want of prosecution.FN4 The Second Circuit has identified five factors that it considers when reviewing a district court's order to dismiss an action for failure to prosecute:

FN4 See Merker v. Rice, 649 F.2d 171, 173 (2d Cir.1981).
[1] the duration of the plaintiffs failures, [2] whether plaintiff had received notice that further delays would result in dismissal, [3] whether the defendant is likely to be prejudiced by further delay, [4] whether the district judge has taken care to strike the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard and [5] whether the judge has adequately assessed the efficacy of lesser sanctions.FN5
FN5 See Shannon v. GE Co., 186 F.3d 186, 193 (2d Cir.1999) (affirming Rule 41 [b] dismissal of plaintiffs claims by U.S. District Court for Northern District of New York based on plaintiffs failure to prosecute the action) [citation and internal quotation marks omitted].

*3 As a general rule, no single one of these five factors is diapositive.FN6 However, I note that, with regard to the first factor, Rule 41.2 of the Local Rules of Practice for this Court provides that a "plaintiff's failure to take action for four (4) months shall be presumptive evidence of lack of prosecution." N.D.N.Y. L.R. 41.2(a). In addition, I note that a party's failure to keep the Clerk's Office apprised of his or her current address may also constitute grounds for dismissal under Rule 41(b) of the Federal Rules of Civil Procedure.FN7

FN6 See Nita v. Conn. Dep't to Env. Protection, 16 F.3d 482 (2d Cir.1994).
FN7 See, e.g. Robinson v. Middaugh, 95-CV-0836, 1997 U.S. Dist. LEXIS 13929, at *2-3, 1997 WL 567961 (N.D.N.Y. Sept. 11, 1997) (Pooler, J.) (dismissing action under Fed.R.Civ.P. 41 [b] where plaintiff failed to inform the Clerk of his change of address despite having been previously ordered by Court to keep the Clerk advised of such a change); see also N.D.N.Y. L.R. 41.2(b) ("Failure 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.").

Here, I find that, under the circumstances, the above-described factors weigh in favor of dismissal. The duration of Plaintiffs failure is some six-and-a-half months, i.e., since April 22, 2007, the date of the last document that Plaintiff attempted to file with the Court (Dkt. No. 85). Plaintiff received adequate notice (e.g., through the Court's above-referenced Order of April 15, 2004, and Defendants' motion to dismiss) that his failure to litigate this action (e.g., through providing a current address) would result in dismissal. Defendants are likely to be prejudiced by further delays in this proceeding, since they have been waiting to take Plaintiffs deposition since May 4, 2007. (Dkt. No. 84.) 1 find that the need to alleviate congestion on the Court's docket outweighs Plaintiffs right to receive a further chance to be heard in this action.FN8 Finally, I have considered all less-drastic sanctions and rejected them, largely because they would be futile under the circumstances (e.g., an Order warning or chastising Plaintiff may very well not reach him, due to his failure to provide a current address).

FN8. It is cases like this one that delay the resolution of other cases, and that contribute to the Second Circuit's dubious distinction as having (among the twelve circuits, including the D.C. Circuit) the longest median time to disposition for prisoner civil rights cases, between 2000 and 2005 (9.8 months, as compared to a national average of 5.7 months). Simply stated, I am unable to afford Plaintiff with further special solicitude without impermissibly burdening the Court and unfairly tipping the scales of justice against Defendant.

B. Failure to Comply with Order of Court

With regard to the second ground for dismissal (a failure to comply with an Order of the Court), the legal standard governing such a dismissal is very similar to the legal standard governing a dismissal for failure to prosecute. "Dismissal... for failure to comply with an order of the court is a matter committed to the discretion of the district court."FN9 The correctness of a dismissal for failure to comply with an order of the court is determined in light of five factors:

FN9. Alvarez v. Simmons Market Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir.1988) [citations omitted].
(1) the duration of the plaintiffs failure to comply with the court order, (2) whether 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 plaintiffs interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal.FN10
FN10. Lucas v. Miles, 84 F.3d 532, 535 (2d Cir.1996) [citations omitted].

Here, I find that, under the circumstances, the above-described factors weigh in favor of dismissal for the same reasons as described above in Part II.A. of this Report-Recommendation. 1 note that the Order that Plaintiff has violated is the Court's Order of April 15, 2004, wherein the Court ordered Plaintiff, inter alia, to keep the Clerk's Office apprised of his current address. (Dkt. No. 5, at 4.) Specifically, the Court advised plaintiff that "[p]laintiff is also required to promptly notify the Clerk's Office and all parties or their counsel of any change in plaintiff's address; his failure to do same will result in the dismissal of this action." ( Id. ) I note also that, on numerous previous occasions in this action, Plaintiff violated this Order, resulting in delays in the action. (See Dkt. Nos. 47, 48, 49, 50, 54, 59, 72, 78, 79 & Dkt. Entry for 12/15/06 [indicating that mail from the Court to Plaintiff was returned as undeliverable].)

*4 As a result, I recommend that, should the Court decide to deny Defendants' motion to dismiss, the Court exercise its authority to dismiss Plaintiffs Amended Complaint sua sponte for failure to prosecute and/or failure to comply with an Order of the Court.

ACCORDINGLY, for the reasons stated above, it is

RECOMMENDED that Defendants' motion to dismiss (Dkt. No. 86) be GRANTED%; and it is further

RECOMMENDED that, in the alternative, the Court exercise its inherent authority to SUA SPONTE DISMISS Plaintiff's Amended Complaint for failure to prosecute and/or failure to comply with an Order of the Court.

Pursuant to 28 U.S.C. 636(b)(1), the parties have ten (10) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN (10) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 [2d Cir.1989]); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

Troy Garrett, Peekskill, NY, Plaintiff, pro se.

Hon. Eliot Spitzer, Attorney General State of New York, Syracuse, NY, for the Defendants.

Maria Moran, Asst. Attorney General, of counsel.

REPORT-RECOMMENDATION

SHARPE, Magistrate J.

I. Introduction FN2

FN2. This matter was referred to the undersigned for a Report-Recommendation by the Hon. Norman A. Mordue, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c).

*1 Plaintiff, pro se Troy Garrett filed an action under 42 U.S.C. § 1983 claiming that the defendants violated his civil rights when they retaliated against him for his activities as an IGRC representative by subjecting him to verbal harassment, physical abuse and subsequently, a transfer. Garrett also claims that the supervisory defendants failed to properly investigate his complaints and failed to train/supervise their employees. This court recommends denying the motion for summary judgment in part and granting it in part.

II. Procedural History

On July 13, 2001, Garrett filed an amended complaint against the defendants claiming that they violated his civil rights under the First, Sixth Eighth, and Fourteenth Amendments.FN3 On September 28, 2001, the defendants filed a motion for summary judgment. On January 18, 2002, this court issued an order informing Garrett of his obligation to file a response and extended his time to respond for thirty days. On April 24, 2002, this court granted an additional sixty days to respond to the defendants' motion. Despite having been given multiple opportunities to respond, Garrett has failed to file a response.

FN3. Although Garrett claims to be raising violations under the Sixth, Eighth, and Fourteenth Amendments, the only viable claim based on this court's interpretation of the complaint is under the First Amendment for retaliation.

III. Facts FN4

FN4. The facts are taken from the defendants' statement of undisputed material facts since Garrett failed to file a response.

On June 17, 1999, Garrett filed a grievance against Officer Kelley for verbal harassment.FN5 This grievance was denied by the Central Office Review Committee (CORC) on July 21, 1999. On March 19, 2000, Garrett filed a grievance claiming that defendant Burge used intimidation tactics. Defendant Reynolds investigated the grievance and it was denied based on a finding that no harassment occurred. Garrett appealed to the CORC and they denied the grievance on April 5, 2000. On April 10, 2000, defendant Centore wrote a misbehavior report against Garrett for creating a disturbance and employee harassment. On April 12, 2000, Lieutenant Manell presided over Garrett's Tier 2 disciplinary hearing and he was found guilty of both charges. He was given a 21 day recreation penalty, and loss of packages and commissary. However, his recreation penalty was suspended and deferred. Garrett appealed the determination and it was affirmed on April 19, 2000.

FN5. Not a party in this suit.

On April 17, 2000, Garrett filed a grievance against Centore for harassment. Burge denied his grievance on May 4, 2000, and subsequently, the CORC denied it. On May 12, 2000, Garrett sent a letter to Burge concerning further harassment by Centore. On May 16, 2000, Garrett filed another grievance against Centore for harassment. His grievance was denied on May 26, 2000. After Garrett appealed, his grievance was again denied by the CORC. On June 22, 2000, the Superintendent's Office received a letter from Garrett alleging that Centore threw a piece of paper with a picture of a plunger and the words "always gets the job done" into his cell. He wrote a grievance against Centore for harassment due to the paper that he threw into his cell. Burge forwarded the grievance to the CORC on August 10, 2000. The CORC accepted the grievance on August 30, 2000, in order to investigate.

*2 On June 23, 2000, the Inspector General's Office interviewed Garrett at the Mohawk Correctional Facility regarding his complaints of Centore. That same day, Captain Naughton filed an administrative segregation recommendation. On June 29, 2000, an administrative segregation hearing was held. On July 14, 2000, Garrett was transferredFN6 to the Mid-State Correctional Facility.

FN6. The defendants suggest that Garrett has failed to exhaust his administrative remedies concerning his transfer. They claim that he agreed to the transfer and participated in the administrative hearing which resulted in his transfer. The issue of transfer will not be addressed in this Report-Recommendation because the court has insufficient information to determine whether he exhausted his remedies.

Finally, Garrett filed a claim alleging that his property was lost or damaged on October 8, 1999. However, he was paid $75.00 for this claim and he signed a release on December 13, 1999.

IV. Discussion

A. Legal ...


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