United States District Court, S.D. New York
REPORT AND RECOMMENDATION
DEBRA FREEMAN, Magistrate Judge.
In this action under 42 U.S.C. § 1983, pro se plaintiff Orlando Rivera ("Plaintiff") alleges that, while detained at the Otis Bantum Correctional Center on Rikers Island, officers at the facility were deliberately indifferent to his serious medical needs and he was subjected to the excessive use of force, causing significant injuries. ( See generally Complaint, dated Oct. 21, 2013 ("Compl.") (Dkt. 2).) Since the date when this action was filed, Plaintiff has, at times, demonstrated a seemingly sincere interest in pursuing his case, but the Court has now heard nothing from him for several months and is unaware of his current whereabouts. In light of Plaintiff's history of nonappearance at conferences and the number of times that the Court has warned him of the potential consequences of failing to participate fully in the action, the Court would be perfectly justified in dismissing this case at this point, for failure to prosecute. Plaintiff's allegations, however - particularly his allegations regarding the excessive use of force - are quite troubling, and this Court is concerned that personal circumstances outside of Plaintiff's control may have prevented him from prosecuting the action.
Given that, due to the running of the statute of limitations, even a dismissal without prejudice would likely result in the forfeiture of Plaintiff's Section 1983 claims, and given the serious nature of his allegations, as set forth in greater detail below, I recommend that, instead of immediate dismissal, this case be stayed and held in abeyance for a limited period of time. Specifically, I recommend that the case be stayed until October 15, 2015 (which would be six months from the date of this Report and Recommendation, and one year from Plaintiff's last communication with the Court), to give Plaintiff a final opportunity to return to Court to litigate his claims. I further recommend, though, that the Court proceed to dismiss the case without prejudice, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, if by October 15, Plaintiff has still made no contact with either Defendants' counsel or the Court.
A. Plaintiff's Allegations
In his Complaint, Plaintiff alleges that, on February 6, 2012, officers sought to remove him from his cell by handcuffing him in the rear, despite a medical order that he was supposed to be handcuffed in front. (Compl. ¶¶ 9-12 of form pleading.) When, according to Plaintiff, he tried to explain this (including by producing a copy of the medical order), one of the officers defendant Captain Simpson ("Simpson") - allegedly "became belligerent, hostile, and irrational, " and informed Plaintiff that, if he did not allow himself to be handcuffed in the rear, then, by order of the officer's supervisor - defendant Deputy of Security Eric Ramos ("Ramos") - Plaintiff would be extracted from his cell by force. (Id. ¶¶ 13-21.)
Plaintiff alleges that a "probe team" of officers was then assembled outside of his cell, at which time Simpson allegedly said that he had been directed by Ramos "to cause serious physical injury to make an example of [Plaintiff]." (Id. ¶¶ 22-23.) The officers then allegedly entered Plaintiffs cell, and proceeded to restrain Plaintiff on the ground and then assault him. (Id. ¶¶ 24-27.) Plaintiff alleges that, while he was restrained, Simpson repeatedly struck him in the face with a closed fist, "causing severe swelling and trauma, " and then "stuck a finger into the same eye socket and attempted to pull [Plaintiffs] eye out, " causing serious damage to Plaintiffs vision, as well as severe pain. (Id. ¶ 25.) Plaintiff also alleges that he heard one of the officers - defendant Correctional Officer Mundy ("Mundy") - state that he was "going to break [Plaintiff s] foot, " and that Mundy, in fact, twisted Plaintiffs foot to the point where Plaintiff suffered a fracture. (Id. ¶ 26.) Plaintiff also alleges that he was punched and kicked in the ribs and lower back, while in mechanical restraints. (Id. ¶ 27.) Plaintiff seeks compensatory damages for his injuries, as well as punitive damages. (Id. ¶ 45, 48.)
B. Procedural History
1. Initial Case Management Conference, Held While Plaintiff Was Incarcerated
When Plaintiff commenced this action, he was incarcerated at a state correctional facility. ( See Compl., at pp. 1, 7.) After the case was referred to this Court lbr general pretrial supervision, this Court, on March 26, 2014, held an initial case management conference by telephone, and Plaintiff participated in that conference. ( See Transcript of Conference (Dkt. 20).) Plaintiff also wrote to the Court in April 2014, requesting a discovery extension and asking for guidance on certain litigation matters. ( See Letter to the Court from Plaintiff, dated Apr. 16, 2014 (Dkt. 22).) In his correspondence, Plaintiff evinced a clear intent to prosecute this action, stating, among other things, "I trully [sic] appreciate the court[']s assistance in this important matter and wish to hear from you as soon as may be possible." ( Id., at 2.)
2. Plaintiff's Repeated Failures To Appear at Court Conferences, After His Release From Custody
On or about May 5, 2014, Plaintiff was released from custody, after which he did not participate reliably in proceedings scheduled by the Court, seemingly because of a lack of stability in his housing situation and sometimes serious medical problems, arising, at least in part from substance abuse. The first evidence of Plaintiff's difficulties came on May 20, 2014, when Plaintiff failed to appear for an in-person case management conference that the Court had scheduled for that date, at 10:00 a.m. ( See Dkt. 20, at 19.) At approximately 10:45 a.m. on that date, after the Court had already adjourned the conference due to Plaintiff's non-appearance, my Chambers received a telephone call from Plaintiff, apparently made from a courtesy phone in the Court Clerk's Office. In that call, Plaintiff reported that he had been living in a shelter and that he was late to Court because the residents were being transferred that day to a different shelter. Plaintiff further informed the Court that, although he was not living with his wife,  he preferred to receive mail at her address. My Chambers instructed Plaintiff to go to the Pro Se Office to file a change-of-address form, and also informed Plaintiff that it would reschedule the case management conference for 12:30 p.m. on that same day. Plaintiff, however, did not file the change-of-address form, and, at 12:30 p.m., he again failed to appear.
On June 2, 2014, this Court issued a Scheduling Order (Dkt. 23), rescheduling the May 20 conference to June 12, 2014, directing Plaintiff to appear at that time, and specifically instructing him that, if he were unable to attend the June 12 conference, then he should write to the Court (via the Pro Se Office) and to Defendants' counsel, in advance of that conference date, to explain why he could not appear. The June 2 Order further instructed Plaintiff that he was required to keep the Court apprised of his current contact information,  and cautioned him that, if he failed to appear in Court for a third time, after having been directed to do so by the Court, or if he failed to keep the Court apprised of changes to his address, then this Court might recommend that this case be dismissed without prejudice for failure to prosecute. Despite this, Plaintiff failed to appear at the scheduled June 12 conference, and did not provide the Court with any updated contact information.
Although this Court then informed Defendants' counsel that, based on what was, by then, Plaintiff's third failure to appear, the Court would likely recommend dismissal of the action without prejudice, the Court first asked counsel to set out, in writing, the extent of its efforts to locate and communicate with Plaintiff In response to the Court's request, Defendants' counsel first informed the Court, by letter dated June 19, 2014 (Dkt. 25), that, following the June 12 conference at which Plaintiff failed to appear, counsel had sent a letter to Plaintiff at the Emerson Place address, instructing him to contact counsel's office upon receipt ( id., at 2). Counsel also represented that he had called the telephone number that Plaintiff had provided ( see supra at n.4), but that no one answered, and there was no voicemail prompt ( see Dkt. 25, at 2). Counsel further informed the Court, however, that, on June 16, 2014, he had received a voicemail message from a woman identifying herself as "Ms. Esteves, " who said that she was Plaintiffs fiancee, and who stated that she could be reached at the same telephone number that Plaintiff had provided. (Id. ) Counsel indicated that he then was able to reach Ms. Esteves by phone, and that she informed him that (1) Plaintiff had been staying at a homeless ...