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Jerez v. Semidey

United States District Court, S.D. New York

January 23, 2015

C.O. SEMIDEY, #18738, et al., Defendants

Candido Jerez, Plaintiff, Pro se, Stratford, CT.

For City of New York, Defendant: Daniel Harrison Oliner, Erica Michelle Haber, LEAD ATTORNEYS, New York City Law Department, New York, NY.

For Officer Hedges, Shield Number 10196, C.O. Semidey, #8738, Defendants: Daniel Harrison Oliner, LEAD ATTORNEY, New York City Law Department, New York, NY.


FRANK MAAS, United States Magistrate Judge.

The Defendants in this civil rights action brought by pro se plaintiff Candido Jerez (" Jerez") seek its dismissal pursuant to Rules 37(b) and 41(b) of the Federal Rules of Civil Procedure, for want of prosecution. For the reasons set forth below, I recommend that the Court grant the Defendants' motion.

I. Background

On October 12, 2013, Jerez filed this action, in which he alleges that two correctional officers at the Otis Bantum Correctional Center at Rikers Island subjected him to excessive force. (See Compl. (ECF No.2); Am. Compl. (ECF No. 24)). Your Honor then referred the case to me for general pretrial purposes on February 11, 2014. (ECF No. 8). After the City identified the two " John Doe" correctional officers named in the original complaint, I held a telephone conference on August 7, 2014. During that conference, I directed that the complaint be deemed amended to name those officers and that all discovery be completed by November 7, 2014. I also directed that a further telephone conference be held on November 12, 2014. (ECF No. 22).

In early September 2014, the Defendants served Jerez -- at both Rikers Island and at an address he provided upon his release from custody -- with interrogatories, requests for the production of documents, and releases for the disclosure of Jerez's medical records. (See ECF No. 27). On November 10, 2014, after Jerez failed to respond, I directed that he serve his discovery responses and authorize the release of his medical records by November 21, 2014. (ECF No. 28).

On November 12, 2014, I held the previously-scheduled telephone conference, but defense counsel could not locate Jerez, who failed to appear. I therefore entered an order that same day directing Jerez to provide the Court and opposing counsel " with his personal cell phone (or 'Medicaid cell phone') number if he ha[d] one, " and scheduled a further telephone conference for January 9, 2015. (ECF No. 30). On November 17, 2014, I extended Jerez's time to respond to the Defendants' discovery requests to November 28, 2014, but cautioned that his failure to comply with this deadline would likely result in my recommendation that his case be dismissed for want of prosecution. (ECF No. 31).

Around this time, I received a letter from Jerez indicating that he has no phone. (ECF No. 32). Jerez further stated that he had come to the courthouse prepared to meet with me, but that this was " severely hard according to court proto[col]." (Id.). Accordingly, by memo endorsement dated November 18, 2014, I converted the January 9 telephone conference to an in-person conference as Jerez requested. (ECF No. 34). Moreover, I again cautioned Jerez that he must respond to the Defendants' discovery requests and provide authorizations by November 28, 2014. (ECF No. 34). Copies of my directives dated November 12, 17, and 18, were sent to Jerez at the last address that he had provided to the Court by both certified mail, return receipt requested, and by regular mail. The copies sent by certified mail were returned as unclaimed, but the duplicates sent to him by regular mail were not. Nevertheless, despite having been given repeated warnings, Jerez has failed to respond to the City's discovery requests. (See ECF No. 36).

Jerez was arrested on December 16, 2014, and he remains in custody at the Anna M. Kross Correctional Facility at Rikers Island. Because he could not appear at the January 9, 2015 conference in person, my Chambers requested that counsel for the Defendants make arrangements for Jerez to appear by telephone. At the scheduled date and time, however, the Department of Corrections notified the Defendants' counsel, Assistant Corporation Counsel Daniel Oliner, that Jerez was refusing to take part in the phone conference and would not leave his cell. Although a captain at the facility made a second attempt to convince Jerez to participate, he again refused to appear. The Court has not heard anything from Jerez since then.

Before the January 9 conference, the Defendants requested by letter dated December 29, 2014, that Jerez's case be dismissed for failure to prosecute pursuant to Rules 37(b)(2) and 41(b) of the Federal Rules of Civil Procedure. (Id.).

II. Discussion

A. Legal Standard

A plaintiff has a duty to advance his case diligently, and his failure to do so may result in dismissal for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See 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)). Under Rule 41(b), a district court may dismiss an action " [i]f the plaintiff fails to prosecute or comply with [the] rules or a court order." Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (quoting Fed.R.Civ.P. 41(b)). A court must, of course, generally be solicitous of pro se litigants, particularly with respect to procedural issues, see Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996), but even they are required to prosecute their cases diligently or risk dismissal. See Yadav v. Brookhaven National Laboratory, 487 F.App'x 671, 672 (2d Cir. 2012).

In considering whether to dismiss a case for want of prosecution pursuant to Rule 41(b), courts must address five factors, considering whether

(1) the plaintiff's failure to prosecute caused a delay of significant duration; (2) plaintiff was given notice that further delay would result in dismissal; (3) defendant was likely to be prejudiced by further delay; (4) the need to alleviate court calendar congestion was carefully balanced against plaintiff's right to an opportunity for a day in court; and (5) the trial court adequately assessed the efficacy of lesser sanctions.

Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009); United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). No single factor is dispositive. Baptiste, 768 F.3d at 216; Nita v. Connecticut Dep't of Envtl. Protection, 16 F.3d 482, 485 (2d Cir. 1994). Rather, a court must consider the " record as a whole, " and must provide its reasoning in the event of a dismissal. Baptiste, 768 F.3d at 216; see also Rawson, 564 F.3d at 576. Here, that record augurs in favor of dismissal. I note that because only Your Honor has the authority to dismiss this case, see 28 U.S.C. § 636(b)(1)(A), Jerez will have one final opportunity to attempt to explain why his prior inaction and refusals to comply with Court orders should not lead to that result.

B. Application of Law to Facts

Turning to the Rawson factors, Jerez has never responded to the City's discovery requests. This noncompliance alone is sufficient to warrant dismissal. See, e.g., Yadav v. Brookhaven Nat. Lab., 487 F.App'x 671, 672-73 (2d Cir. 2012) (dismissal appropriate for pro se plaintiff's three-month delay in responding to discovery requests); Antonios A. Alevizopoulos & Associates, Inc. v. Comcast Int'l Holdings, Inc., No. 99 Civ. 9311 (SAS), 2000 WL 1677984, at *2 (S.D.N.Y. Nov. 8, 2000) (delay of four months sufficient to warrant dismissal). Moreover, Jerez's delay cannot be excused or explained by his rearrest since that occurred after the Court's deadline to respond had passed.

Additionally, Jerez clearly has been on notice that his failure to respond to the Defendants' discovery requests could result in the dismissal of his case by virtue of the Defendants' November 7, 2014 letter, (ECF No. 27), and the Court's memo endorsements dated November 17 and 18, 2014. (ECF Nos. 31, 34). Three such warnings are sufficient to put Jerez on notice of the consequences of his inaction. See, e.g., Antonios A. Alevizopoulos & Associates, Inc., 2000 WL 1677984, at *3.

Turning to the third factor, while " [p]rejudice to defendants resulting from an unreasonable delay may be presumed, . . . in cases where delay is more moderate or excusable, the need to show actual prejudice is proportionately greater." Lyell Theatre Corp., 682 F.2d at 43. Here, Jerez's inaction has certainly caused the Defendants some prejudice. As stated in defense counsel's letter dated November 7, 2014, Jerez's failure to authorize the release of his medical records has prevented the Defendants from accessing relevant Department of Correction records, obstructed their ability to investigate and assess Jerez's claimed injuries, and thus frustrated their efforts to comply with the Court's order dated April 2, 2014, directing them to fashion and convey a settlement position. (See ECF No. 27).

Jerez also has had ample opportunity to prosecute this case, and has demonstrated an ability to do so by having made various filings. (See ECF Nos. 24, 25, 32, 33). Nonetheless, Jerez has repeatedly ignored his discovery obligations and this Court's orders and deadlines. Perhaps the most extreme example of this is his conduct on January 9, 2015, when Jerez could have explained his actions, but steadfastly refused to participate. " The efficient administration of judicial affairs -- a consideration vital to the Court's ability to provide meaningful access to other litigants -- depends on the Court's overseeing its docket and guaranteeing that its cases progress with appropriate speed." Antonios A. Alevizopoulos & Associates, Inc., 2000 WL 1677984, at *3 (citing Lyell Theatre Corp., 682 F.2d at 42). Here, there is no way to progress this case if Jerez will not comply with the Court's directives and participate in conferences.

Finally, lesser sanctions are not appropriate. Although " [a] district judge should employ [Rule 41(b) dismissal] only when he is sure of the impotence of lesser sanctions, " Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir. 1980), Jerez has repeatedly demonstrated that no lesser sanction will result in his compliance with judicial directives. This Court's repeated prior warnings have been ineffective in generating a response to the Defendants' discovery requests. Yet a further warning or a conditional dismissal would simply compound the delay. See, e.g., Peters-Turnbull v. Bd. of Educ. of City of New York, No. 96 Civ. 4914 (SAS), 1999 WL 959375, at *3 (S.D.N.Y. Oct. 20, 1999) (" A court need not beg a party to comply with its orders."); see also Brow v. City of New York, 391 F.App'x 935, 937 (2d Cir. 2010) (lesser sanctions deemed ineffective where plaintiff failed to comply with court's warning of the possibility of dismissal). Moreover, because Jerez is proceeding in forma pauperis, economic sanctions obviously would be ineffective. See e.g., Williams v. Pathmark Stores, Inc., No. 02 Civ. 3612 (PKL), 2005 WL 2105531, at *3 (S.D.N.Y. Sept. 1, 2005).

III. Conclusion

For the foregoing reasons, Jerez's amended complaint should be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, for want of prosecution.[1]

IV. Notice of Procedure for Filing Objections to this Report and Recommendation

The parties shall have fourteen days from the service of this Report and Recommendation to tile written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a) and (e). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of Honorable Analisa Torres and to my chambers, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Torres. The failure to tile these timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).

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