United States District Court, S.D. New York
RONALD G. TAYLOR and ROSE M. TAYLOR, Plaintiffs,
NEW YORK CITY POLICE DEPARTMENT; JOHN AND JANE DOE OPERATIVES OF THE NEW YORK CITY POLICE DEPARTMENT; PATRICK CHAN, individually and in his official capacity within the New York City Housing Authority; ARALYN MASON, individually and in her official capacity within the New York City Housing Authority; RENEE WRIGHT, individually and in her official capacity within the New York City Housing Authority; NEW YORK CITY HUMAN RESOURCES ADMINISTRATION, DEPARTMENT OF ADULT PROTECTIVE SERVICE; DET. TARAH BARRETT, Shield #2277; SGT. JUAN ORTIZ, Shield #05606; JOHN AND JANE DOE OPERATIVES OF THE HUMAN RESOURCES ADMINISTRATION, ADULT PROTECTIVE SERVICES DIVISION UP TO AND INCLUDING THE INDIVIDUAL WHO PURPORTED TO BE A PSYCHIATRIST ON 11/5/15; THE JOHN AND JANE DOE POLICE OFFICERS; P.O. JESSICA RIVERA, Shield #18470 Defendants.
HORABLE PAUL A. CROTTY, U.S.D.J.
REPORT AND RECOMMENDATION
C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE.
action pursuant to 42 U.S.C. § 1983, the plaintiffs,
Ronald G. Taylor and Rose M. Taylor, allege, among other
things, that Mr. Taylor's Fourth and Eighth Amendment
rights were violated when members of the New York City Police
Department arrested him without probable cause on two
occasions. Ms. Taylor alleges that her Fourth and Eighth
Amendment rights were violated when members of the New York
City Housing Authority allowed her apartment to become
uninhabitable. The defendants seek dismissal of the complaint
for failure to prosecute. I recommend that the motion be
the procedural history that is relevant here, rather than the
substantive allegations of the plaintiffs. The plaintiffs
filed their original complaint in March 2015. (Complaint at
1). In June 2016, I ordered the parties to complete discovery
by December 30, 2016. (Order dated June 28, 2016
(“6/28/16 Order”) at 1). The parties have yet to
complete discovery, principally because both plaintiffs have
failed to attend depositions despite multiple attempts by the
defendants to depose them.
plaintiffs' did not appear for depositions on December 6,
2016, and December 8, 2016. (Letter of David Ferrari dated
Dec. 22, 2016 (“Ferrari 12/22/16 Letter”) at 2).
Although the plaintiffs alerted the defendants that they were
not going to attend these depositions, they did not offer
alternative dates. (Ferrari 12/22/16 Letter at 2). According
to defendants' counsel, the plaintiffs explained that
they were “unable to comply with their discovery
obligations because they have been inundated with seeking
appropriate medical treatment for Plaintiff Rose
Taylor.” (Ferrari 12/22/16 Letter at 2).
Notwithstanding Ms. Taylor's purported medical treatment,
the plaintiffs assured the defendants that they would comply
with future discovery requests. (Ferrari 12/22/16 Letter at
2). In light of these assurances, the defendants, rather than
moving for sanctions at that time, agreed to file a joint
application to extend the discovery deadline. (Ferrari
12/22/16 Letter at 2). I granted the parties' request and
extended the deadline to February 28, 2017. (Order dated Dec.
plaintiffs next refused to appear for depositions on February
15, 2017, and February 16, 2017. (Letter of David Ferrari
dated Feb. 14, 2017 (“Ferrari 2/14/17 Letter”) at
2). The plaintiffs stated that they were not going to attend
these depositions unless the defendants agreed to pay for the
costs associated with their appearances -- including meals
and transportation. (Email of Ronald Taylor dated February
13, 2017 (“Taylor 2/13/17 Email”), attached to
Letter of Ronald Taylor dated February 21, 2017, at
In response to the email, the defendants filed a motion to
compel the plaintiffs to appear for their depositions.
(Ferrari 2/14/17 Letter at 2). I granted that motion and
ordered the plaintiffs to appear for depositions on February
20, 2017 and February 22, 2017. (Order dated Feb. 15, 2017
(“2/15/17 Order”)). In that Order, I warned the
plaintiffs that “[f]ailure to comply with this order
shall result in sanctions, including possible dismissal of
the complaint.” (2/15/17 Order). Later that day, after
defense counsel realized that Mr. Taylor's deposition was
scheduled for a federal holiday, the defendants requested to
change the date of Mr. Taylor's deposition. (Letter of
David Ferrari dated February 15, 2017). The next day, I
granted that application and ordered Mr. Taylor to appear for
his deposition on March 7, 2017 rather than February 22,
2017. (Order dated February 16, 2017 (2/16/17 Order”)).
In that Order, I further warned Mr. Taylor that
“[f]ailure to appear will result in sanctions,
including possibly dismissal of the complaint. (2/16/17
plaintiffs did not appear for the depositions on February 22,
2017, and March 7, 2017. (Letter of David Ferrari dated March
13, 2017 (Ferrari “3/13/17 Letter”) at 2). In
response, the defendants requested that I issue a report and
recommendation to dismiss this matter with prejudice in
response to the plaintiffs' failure to comply with Court
orders and to prosecute this action. (Ferrari 3/13/17 Letter
at 3). In the alternative, the defendants requested that I
compel the plaintiffs to appear for depositions on pain of
dismissal of the action. (Ferrari 3/13/17 Letter at 3).
Instead of dismissing the case, I ordered the plaintiffs to
appear for depositions on March 21, 2017, and March 23, 2017.
(Memorandum Endorsement dated March 15, 2017 (“3/15/17
Memo Endorsement”) at 3). In that Order, I stated that
“[s]ince the defendants appear willing to give the
plaintiffs one last chance to avoid dismissal of this case, I
am as well.” (3/15/17 Memo Endorsement at 3).
plaintiffs did not appear for the depositions on March 21,
2017, and March 23, 2017. (Letter of David Ferrari dated
April 5, 2017 (“Ferrari 4/5/17 Letter”) at 3). In
response, the defendants renewed their request that I issue a
recommendation that this action be dismissed with prejudice.
(Ferrari 4/5/17 Letter at 3).
action may be dismissed pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure “[i]f the plaintiff fails to
prosecute or to comply with the[ ] rules or a court
order.” The court's authority to dismiss for
failure to prosecute “is vital to the efficient
administration of judicial affairs and provides meaningful
access for other prospective litigants to overcrowded
courts.” Peterson v. Apple Inc., No. 12 Civ.
6467, 2013 WL 3467029, at *8 (S.D.N.Y. July 10, 2013)
(quoting Lyell Theatre Corp. v. Loews
Corp., 682 F.2d 37, 42 (2d Cir. 1982)). The discretion
to dismiss under this rule is guided by five factors:
(1) the duration of the plaintiff's 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 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.
Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir.
2014) (per curiam) (quoting Lucas v. Miles, 84 F.3d
532, 535 (2d Cir. 1996)). Generally, no single factor is
dismissal with prejudice is a harsh sanction, a prose plaintiff's action should be dismissed under
Rule 41(b) only if the circumstances are “sufficiently
extreme.” Id. at 217 (quoting LeSane v.
Hall's Security Analyst, Inc., 239 F.3d 206, 209 (2d
Cir. 2001)). Furthermore, dismissal must be preceded
“by particular procedural prerequisites, ” which
include “notice of the sanctionable conduct, the
standard by which it will be assessed, and an opportunity to
be heard.” Mitchell v. LyonsProfessional
Services, Inc., 708 F.3d 463, 467 (2d Cir. 2013). There
must be “clear ...