United States District Court, S.D. New York
MEMORANDUM & ORDER
ALISON J. NATHAN, District Judge.
On February 19, 2015, Defendant C.O. Frizzotti filed a motion to dismiss. Dkt. No. 11. Although Plaintiff Martin Jankowski was granted an extended amount of time to oppose that motion to dismiss, he failed to file an opposition, despite an express warning that such failure to file an opposition or any communication with the Court may result in dismissal of this case. Dkt. Nos. 14-15. Because Plaintiff still has not indicated a willingness to participate in this action, the Court hereby dismisses the action for failure to prosecute.
On September 12, 2014, Plaintiff filed a complaint against the Eric M. Taylor Center on Rikers Island, C.O. Frizzotti, and Corizon asserting claims for damages under 42 U.S.C. § 1983. Dkt. No. 1. In his Complaint, Plaintiff expressly asked the Court to "please send all legal mail to: 15 Allison Place, Staten Island, NY 10306." Dkt. No. 1 at 3.
Following a review of Plaintiff's Complaint, the Court dismissed Plaintiff's claims against the Eric M. Taylor Center because it is not a "person" for purposes of§ 1983. Dkt. No. 6 at 2 (citing Reynolds v. Darrah, No. 11-CV-5885, 2011 U.S. Dist. LEXIS 1136211, at *2-3 (S.D.N.Y. Sept. 30, 2011)). But the Court issued an Order of Service as to the remaining Defendants. Dkt. No. 6.
In that October 21, 2014 Order of Service, the Court directed the Clerk of Court to send Plaintiff one U.S. Marshals Service Process Receipt and Return form ("USM-285 form") for Defendant Corizon. Dkt. No. 6 at 2. The Court further informed Plaintiff that he was to complete a USM-285 form and return that form to the Court or request a summons for Defendant Corizon within 30 days of the Court's October 21, 2014 Order. Dkt. No. 6 at 2. The Order of Service warned Plaintiff that "[i]f within thirty days, Plaintiff has not returned the USM-285 form or requested a summons, under Rule 41 (b) of the Federal Rules of Civil Procedure, the Court may dismiss Plaintiff's claims against Defendant Corizon for failure to prosecute." Dkt. No. 6 at 2. The following day, the Clerk of Court sent the USM-285 form to Plaintiff at the address provided in his Complaint. See minute entry for October 22, 2014. The Court also mailed a copy of the Order of Service to Plaintiff at the address provided in his Complaint. See minute entry for October 23, 2014. Plaintiff never returned the USM-285 or requested a summons with respect to Corizon.
The Court also directed the Clerk of Court to notify the New York City Department of Correction and the New York City Law Department of the October 21, 2014 Order, and it requested that Defendant Frizzotti waive service of summons. Dkt. No. 6 at 3. On November 20, 2014, Defendant Frizzotti filed a waiver of service of summons. Dkt. No. 7.
On February 19, 2015, Defendant Frizzotti filed a motion to dismiss. Dkt. No. 11. On February 23, 2015, the Court issued an Order informing Plaintiff that Defendant Frizzotti had moved to dismiss his Complaint. Dkt. No. 14. The Court informed Plaintiff that, under the Federal Rules of Civil Procedure, he normally would have 21 days after the service of the motion to amend his Complaint once as a matter of course. Dkt. No. 14 at 1. Since Plaintiff was proceeding prose, however, the Court granted him additional time to amend his Complaint, giving him until March 19, 2015. Dkt. No. 14 at 1. The Court further informed Plaintiff that if he did not file an amended complaint, he was to serve his opposition to Defendant's motion to dismiss by March 19, 2015. Dkt. No. 14 at 1.
March 19, 2015 came and went with no communication from Plaintiff. On April 2, 2015, the Court issued an Order summarizing its February 23, 2015 Order and informing Plaintiff that he had until May 1, 2015 to submit a letter to the Court indicating if he wishes to file an opposition to the motion to dismiss or does not wish to file an opposition to the motion. Dkt. No. 15. The Court further informed Plaintiff that if he "indicates in his letter that he will not file an opposition brief, the Court will deem the motion fully submitted and will consider its merits. If [he] indicates in his letter that he intends to file an opposition brief and is seeking an extension of the deadline to file an opposition, [he] must demonstrate in his letter that his pursuit of the action has been diligent and that there is good reason for extending the deadline." Dkt. No. 15 at 1. Finally, the Court expressly informed Plaintiff that "[f]ailure to submit any letter to the Court by May 1, 2015 shall result in DISMISSAL of the action for failure to prosecute." Dkt. No. 15 at 1 (citing Fed.R.Civ.P. 41(b); Ruzsa v. Rubenstein & Sendy Attys. at Law, 520 F.3d 176, 178 (2d Cir. 2008) ("[I]n light of [plaintiff's] failure to respond to the notice threatening dismissal, it is equally unclear that a lesser sanction' would have proved effective in this case.")).
As of June 23, 2015, the Court has not received any communication from Plaintiff. Indeed, since filing his Complaint, request to proceed informa pauperis, and prison authorization form on September 12, 2014, Plaintiff has not responded to any communications from the Court and has not otherwise communicated with the Court. Moreover, although the mail sent to Plaintiff at the Eric M. Taylor Center was returned as undeliverable, no mail that was sent to the address provided in Plaintiff's Complaint has been returned. (All Court communications have been sent to the address provided in Plaintiff's Complaint since October 22, 2014.)
II. LEGAL STANDARD
"Rule 41 (b) of the Federal Rules of Civil Procedure authorize the district court to dismiss an action [i]f the plaintiff fails to prosecute or to comply with [the] rules or a court order.'" Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014). In addition, "[i]f a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice the plaintiff-must dismiss the action without prejudice against that defendant or order that service made within a specified time." Fed.R.Civ.P. 4(m). "A district court considering a Rule 41 (b) dismissal must weigh five factors: (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.'" Baptiste, 768 F.3d at 216 (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)).
Applying the five factors set forth in Baptiste, the Court concludes that dismissal pursuant to Rule 41 (b) for ...