United States District Court, N.D. New York
JOHN P. FINCH, SR., Plaintiff,
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.
P. FINCH, SR. Plaintiff, pro se
OF THE NEW YORK STATE ATTORNEY GENERAL KEITH J. STARLIN, AAG.
Attorneys for Defendants
MEMORANDUM-DECISION AND ORDER
D'Agostino, U.S. District Judge
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.
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.
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.
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.
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.
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 ...