United States District Court, E.D. New York
M. COGAN U.S.D.J.
REPORT & RECOMMENDATION
brings this pro se action alleging that various
Corrections Officers violated his Eighth Amendment rights
pursuant to 42 U.S.C § 1983. For the following reasons,
it is respectfully recommended under 28 U.S.C. § 636(b)
that this case should be dismissed without prejudice pursuant
to Rule 41(b) of the Federal Rules of Civil Procedure.
commenced this action by filing a. pro se complaint
on January 4, 2017 in the United States District Court for
the Southern District of New York. (ECF No. 2.) Plaintiffs
case was transferred to the Eastern District of New York on
January 9, 2017. Plaintiff filed an application to proceed
in forma pauperis, (ECF Nos. 1), and a motion
requesting pro bono counsel (ECF No. 4). Plaintiffs
application to proceed in for ma pauperis was
granted on January 30, 2017, and the Court directed the
United States Marshals Service to serve defendants.
Plaintiffs motion for pro bono counsel was denied without
prejudice on January 27, 2017. On February 9, 2017, the copy
of my January 27, 2017 Order previously mailed to plaintiff
was returned to the Court as undeliverable. On February 14,
2017, the Court ordered the Office of Corporation Counsel to
provide plaintiffs last known address, which they did on
February 21, 2017.
February 24, 2017, the Court directed plaintiff "to
write the Court to provide his current address by March 31,
2017." (EC No. 16.) The Court's Order warned
plaintiff that if he failed to provide a current address by
that date, I would recommend that this action should be
dismissed. A copy of the Order was mailed to plaintiff at his
last known address. On March 17, 2017, a copy of my February
24, 2017 Order was returned as undeliverable with a notation
stating "Attempted -Not Known. Unable to Forward."
(ECF No. 25.) Plaintiff has not contacted the Court since
commencing this action on January 4, 2017.
41(b) authorizes the district court to dismiss a complaint
"[i]f the plaintiff fails to comply with [the Federal
Rules of Civil Procedure] or a court order."
Fed.R.Civ.P. 41(b); see also LeSane v. Hall's Sec.
Analyst. Inc.. 239 F.3d 206, 209 (2d Cir. 2001)
("[I]t is unquestioned that Rule 41(b) also gives the
district court authority to dismiss a plaintiffs case sua
sponte for failure to prosecute.") All plaintiffs,
whether represented or proceeding pro se, are
"obligated to notify the court when [they] change
addresses." Canario-Duran v. Borecky. No.
10-CV-l 736, 2011 WL 176745, at *1 (E.D.N.Y. Jan. 19, 2011)
(citing Concepcion v. Ross. No. 92-CV-770, 1997 WL
777943, at *1 (E.D.N.Y. Oct. 28, 1997)). "[T]he demand
that a plaintiff provide contact information is no esoteric
rule of civil procedure, but rather the obvious minimal
requirement for pursuing a lawsuit." Edwards v.
Stevens, No. 11 Civ. 7329, 2012 WL 3597663, at *2
(S.D.N.Y. Aug. 22, 2012) (internal quotation marks and
because litigation "cannot proceed without a current
address for the plaintiff, " courts have repeatedly held
that a plaintiffs "failure to maintain such an address
with the Court" is a sufficient ground to dismiss
without prejudice for failure to prosecute. Pratt v.
Behari, No. 11 Civ. 6167, 2012 WL 1021660, at *1
(S.D.N.Y.Mar. 26, 2012) (involving a plaintiff released from
custody); see also Dong v. United States. No. 02
Civ. 7751, 2004 WL 385117, at *3 (S.D.N.Y. Mar. 2, 2004)
(dismissing a pro se litigant's case because the
litigant failed to inform the Court of his current address,
causing the Court to lose contact with him). "However,
because dismissal with prejudice is a harsh remedy to be
utilized only in extreme situations, dismissal of the
complaint should be without prejudice." Torres v.
Yonkers Police Dept, No. 11 Civ. 1819, 2011 WL 2555854,
at *2 (S.D.N.Y. June 28, 2011) (emphasis added).
has not contacted the Court since filing this pro se
action on January 4, 2017, and he failed to respond to the
Court's Order to provide the Court with his current
address by March 31, 2017. The Court has no other contact
information for plaintiff. Plaintiff has made no effort to
prosecute this case and has apparently abandoned the action.
It would be futile to allow the case to continue. I therefore
recommend that plaintiffs action should be dismissed without
prejudice.See Coleman v. Doe. No. 05-CV-5849
(JG), 2006 WL 2357846, at * 1 (E.D.N.Y. August 14, 2006)
(dismissing plaintiffs complaint without prejudice under
41(b) for failure to prosecute where pro se
plaintiff failed to notify the Court of a change in address).
foregoing reasons, it is respectfully recommended that this
case should be dismissed without prejudice pursuant to
Federal Rules of Civil Procedure 41(b) for plaintiffs failure
OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have fourteen
(14) days from service of this Report to file written
objections. See also Fed.R.Civ.P. 6. Such objections
(and any responses to objections) shall be filed with the
Clerk of the Court. Any request for an extension of time to
file objections must be made within the fourteen-day period.
Failure to File a timely objection to this Report generally
waives any further judicial review. Marcella v. Capital
Dist. Physician's Health Plan, ...