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Finch v. Moore

United States District Court, N.D. New York

April 6, 2017

JOHN P. FINCH, SR., Plaintiff,
v.
DONALD MOORE, N.Y.S. Trooper, State Trooper Barracks in Lee, New York; JOSEPH CALLEJA, N.Y.S. Trooper, State Trooper Barracks in Lee, New York, Defendants.

          JOHN P. FINCH, SR. Plaintiff, pro se

          OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL KEITH J. STARLIN, AAG. Attorneys for Defendants

          MEMORANDUM-DECISION AND ORDER

          Mae A. D'Agostino, U.S. District Judge

         I. INTRODUCTION

         On January 4, 2016, pro se Plaintiff John P. Finch, Sr. ("Plaintiff") commenced the instant action against Defendants Donald Moore and Joseph Calleja (collectively, "Defendants") pursuant to 42 U.S.C. § 1983. See Dkt. No. 1. Since filing the complaint, Plaintiff has taken no further action to prosecute this case. Plaintiff has not been receiving any documents mailed to him at his listed address at Clinton Correctional Facility, nor has Plaintiff notified the Court of any change of address. Currently before the Court is Defendants' motion to dismiss for failure to prosecute pursuant to Fed.R.Civ.P. 41(b). See Dkt. No. 17.

         II. BACKGROUND

         Plaintiff filed the complaint on January 4, 2016. See Dkt. No. 1. On March 15, 2016, Magistrate Judge Daniel J. Stewart granted Plaintiff's application to proceed In Forma Pauperis and ordered that Defendants respond to Plaintiff's complaint after receiving service of process. See Dkt. No. 4. On that same day, Judge Stewart issued a Filing Order scheduling an initial conference and ordering that a Civil Case Management Plan be completed and filed by June 7, 2016. See Dkt. No. 5. The Court attempted to mail copies of those orders to Plaintiff's listed address at Clinton Correctional Facility, but the mail was returned as undeliverable on March 21, 2016. See Dkt. No. 7.

         On April 22, 2016, Defendants filed an answer and attempted to serve the answer upon Plaintiff by regular mail at Plaintiff's listed address. See Dkt. No. 13; Dkt. No. 17-4. On May 2, 2016, the answer was returned to Defendants' counsel with a sticker affixed thereto that read "Return to Sender - Attempted - Not Known - Unable to Forward." Dkt. No. 17-1 ¶ 12; Dkt. No. 17-5. On May 9, 2016, Judge Stewart issued a Text Order and a Pretrial Scheduling Order. See Dkt. Nos. 14, 15. Again, the Court attempted to mail copies of those orders to Plaintiff, but the mail was returned as undeliverable on May 20, 2016. See Dkt. No. 16.

         On October 5, 2016, Defendants filed a motion to dismiss for failure to prosecute. See Dkt. No. 17. Defendants attempted to serve the motion and related papers on Plaintiff by mail on that same day, but those papers were returned to Defendants on October 11, 2016 with a "Return to Sender" stamp on the envelope. See Dkt. No. 18. On October 14, 2016, the Court issued a Text Order notifying Plaintiff that the Court would decide Defendants' unopposed motion to dismiss if Plaintiff failed to provide the Court with his current address. See Dkt. No. 19. The Court attempted to mail a copy of this Text Order to Plaintiff, but the mail was returned as undeliverable on October 27, 2016. See Dkt. No. 21.

         In a declaration submitted by Defendants' attorney, Keith J. Starlin, Mr. Starlin claims that, according to the New York State Department of Corrections and Community Supervision ("DOCCS") inmate information database, Plaintiff was released from DOCCS's custody on February 25, 2016. See Dkt. No. 17-1 ¶¶ 16-17. Since Plaintiff's release, Plaintiff has failed to notify the Court or Defendants of his current address or any contact information indicating how he can be reached.

         III. DISCUSSION

         Fed. R. Civ. P. 41(b) provides, in relevant part, that "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." Fed.R.Civ.P. 41(b). Courts balance the following factors when determining whether dismissal is appropriate under Rule 41(b):

(1) the duration of the plaintiff's failure to comply with the court order; (2) whether the 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 plaintiff's interest in receiving a fair chance to be heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal.

U.S. ex rel Roundtree v. Health & Hosps. Police Dep't of N.Y., No. 06 Civ. 212, 2007 WL 1428428, *1 (S.D.N.Y. May 14, 2007) (footnote omitted). "A district court need not exhaustively discuss the above factors on the record in order to be affirmed on appeal. However, 'notions of simple fairness suggest that a pro se litigant should receive an explanation before his or her suit is thrown out ...


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