United States District Court, E.D. New York
SANDRA J. FEUERSTEIN, District Judge.
On January 6, 2014, pro se plaintiff Damion Ishmael Brown ("plaintiff") filed a civil rights complaint pursuant to 42 U.S.C. § 1983 ("Section 1983") against the Nassau County Police Department ("NCPD"); Nassau County Sheriff Department ("NCSD"); John Nyugen ("Nyugen"); and three (3) "John Doe" defendants, identified only as officers employed by the NCSD (collectively, "defendants"), accompanied by an application to proceed in forma pauperis.
By order dated April 8, 2014, inter alia, plaintiff's application to proceed in forma pauperis was granted; his claims against the NCPD, NCSD and Nyugen were sua sponte dismissed with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim for relief; his claims as construed to be against the County of Nassau ("the County"), were sua sponte dismissed without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim for relief; and plaintiff was granted leave to file an amended complaint to replead his claims as construed to be against the County.
On or about June 26, 2014, plaintiff filed an amended complaint against the County, six (6) "John Doe" defendants, Detectives Lashinsky and Watson, and Michael J. Sposato, Sheriff of the NCSD (collectively, "defendants"), alleging, inter alia, violations of his constitutional rights based upon his arrest, for which the records have been sealed. Five (5) of the "John Doe" defendants were subsequently identified by the County as Officer Timothy Whidden, #2946; Officer Vincent Adams, #3074; Officer Eden Carpio, #3003; Officer Stephan D'Andrea, #2909; and Officer Shawn Burns, #364. Defendants filed an answer to the amended complaint on or about December 2, 2014.
On or about December 16, 2014, defendants moved to compel plaintiff to execute stipulations to unseal his underlying arrest records, after their two (2) prior attempts to obtain the stipulations to unseal from plaintiff without court intervention, on December 3 and December 9, 2014, were unsuccessful. (See Docket Entry ["DE"] No. 30). By order dated January 5, 2015, the Honorable Arlene R. Lindsay, United States Magistrate Judge, granted defendants' motion to compel and directed plaintiff "to execute and return the stipulation [to unseal] to [defendants] by January 20, 2015." (DE No. 31). On or about January 6, 2015, defendants mailed to plaintiff a copy of Magistrate Judge Lindsay's order, together with three (3) copies of "a Stipulation to Unseal Records and an Authorization to Unseal Records, " and requested that he "immediately" execute and return the stipulations to unseal in the self-addressed stamped envelope provided. (County's Letter Motion dated February 9, 2015 ["Cty. Mot."], Ex. C). A tracking confirmation from the United States Postal Service ("USPS") indicates that defendants' mailing was delivered to plaintiff's address of record on January 8, 2015. (Id.)
Defendants did not receive the executed stipulations to unseal in accordance with Magistrate Judge Lindsay's order. Accordingly, by letter dated January 26, 2015, defendants: (a) again provided plaintiff with three (3) copies of "a Stipulation to Unseal Records and an Authorization to Unseal Records, " a self-addressed stamped envelope, their motion to compel and Magistrate Judge Lindsay's order; and (b) advised plaintiff (i) that he was in violation of Magistrate Judge Lindsay's order directing him to execute and return the stipulations to unseal by January 20, 2015, and (ii) that if he did "not execute and return the Stipulations to Unseal by or before February 4, 2015, [they] [would] be forced to move to dismiss [his] complaint under Federal Rules of Civil Procedure 41(b)." (Cty. Mot., Ex. D) (emphasis omitted). A USPS tracking confirmation indicates that the January 26, 2015 letter was delivered to plaintiff's address of record on February 3, 2015. (Id.)
On February 9, 2015, after failing to receive the executed stipulations to unseal, defendants filed a letter motion seeking to dismiss this action pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for plaintiff's continued failure to comply with Magistrate Judge Lindsay's January 5, 2015 order and to provide them with executed stipulations to unseal his arrest records. Plaintiff has not opposed, or otherwise responded to the motion, nor sought an extension of time to do so. In fact, the Court's docket reflects that after filing a notice of change of address on August 14, 2014, plaintiff has had no further communication with the Court, nor taken any steps to prosecute this action.
A district court may dismiss a complaint pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for, inter alia, failure to prosecute or to comply with a court order. See Lewis v. Rawson, 564 F.3d 569, 575 (2d Cir. 2009) (holding that Rule 41(b) explicitly sanctions dismissal of an action for failure to prosecute); U.S. ex rel. Drake v. Norden Systems, Inc., 375 F.3d 248, 250 (2d Cir. 2004) (holding that a district judge's authority to dismiss an action based upon a plaintiff's failure to prosecute is expressly recognized by Rule 41(b)).
In considering whether to dismiss an action for failure to prosecute or to comply with a Court order, courts must consider the following factors, although no one factor is dispositive: (1) the duration of the plaintiff's failures or non-compliance; (2) whether the plaintiff was on notice that the delay would result in dismissal; (3) whether the defendant is likely to be prejudiced by any further delay in the proceedings; (4) whether the court's interest in managing its docket outweighs the plaintiff's interest in receiving an opportunity to be heard; and (5) whether a lesser sanction is available and would be effective. See Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014); Lewis, 564 F.3d at 576.
Plaintiff's unexplained failure to comply with Magistrate Judge Lindsay's order for over two (2) months, and to provide defendants with the stipulations to unseal for approximately four (4) months, weighs in favor of dismissal under Rule 41(b) of the Federal Rules of Civil Procedure. See, e.g. Yadav v. Brookhaven Nat'l Lab., 487 F.Appx. 671, 672-73 (2d Cir. Nov. 7, 2012), cert. denied, 134 S.Ct. 440, 187 L.Ed.2d 284 (2013) (summary order) (affirming dismissal of the plaintiff's case pursuant to Rule 41(b) of the Federal Rules of Civil Procedure where, inter alia, over the course of three (3) months, the plaintiff failed to properly respond to the defendants' discovery requests despite repeated prompting by the defendants and the Court); Embuscado v. DC ...