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Oliver v. Sticht

United States District Court, W.D. New York

August 23, 2017

JAMES OLIVER, Plaintiff,
v.
STICHT, DEPUTY SUPERINTENDENT SECURITY, Defendant.

          DECISION AND ORDER

         CHARLES J. SIRAGUSA UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 41(b) and Western District of New York Local Rules of Civil Procedure 11(a) and 41(b). For the reasons stated below, Defendant's motion is granted.

         BACKGROUND

         On February 25, 2014, James Oliver (“Plaintiff”) filed a complaint pursuant to 42 U.S.C. § 1983, against New York State Department of Correctional Services and Community Supervision Acting Commissioner Annucci and Deputy Superintendent of Security Sticht. On October 24, 2014, all claims against Acting Commissioner Annucci were dismissed with prejudice.

         On March 16, 2015, Plaintiff filed a motion to amend his complaint against the remaining party, Deputy Superintendent Security Sticht (“Defendant”). Plaintiff's motion to amend his complaint was denied without prejudice to allow Plaintiff to refile following a Rule 16 conference. Plaintiff's Rule 16 conference was scheduled for January 26, 2016, however Plaintiff failed to appear. A Rule 16 conference was rescheduled for April 20, 2016, and Plaintiff appeared via telephone.

         On June 15, 2016, the Court received notice from Defendant that Plaintiff was scheduled to be deposed on July 21, 2016; Plaintiff failed to appear or notify the Court of any conflicts with that date. On August 4, 2016, Defendant filed a motion to dismiss Plaintiff's complaint. The Court set August 31, 2016, as the deadline for Plaintiff to file a response to Defendant's motion to dismiss. To date, Plaintiff has filed no response to Defendant's motion or communicated with the Court. On August 11, 2016, Defendant asked that any order of dismissal be accompanied by an award of $77.80 for the cost of the deposition. ECF No. 27.

         ANALYSIS

         Federal Rule of Civil Procedure 41(b) authorizes a Court to dismiss to an action for failure to prosecute:

If 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. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule-except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19-operates as an adjudication on the merits.

Fed. R. Civ. P. 41(b).

         The Western District of New York's local rule regarding failure to prosecute civil actions in relevant part states:

If a civil case has been pending for more than six (6) months and is not in compliance with the directions of the Judge or a Magistrate Judge, or if no action has been taken by the parties in six (6) months, the Court may issue a written order to the parties to show cause within thirty (30) days why the case should not be dismissed for failure to comply with the Court's directives or to prosecute. The parties shall respond to the order by filing sworn affidavits explaining in detail why the action should not be dismissed. They need not appear in person. No explanations communicated in person, over the telephone, or by letter shall be accepted. If the parties fail to respond, the Judge may issue an order dismissing the case, or imposing sanctions, or issuing such further directives as justice requires.

         Rule 41(b) of the Local Rules of Civil Procedure. It is within the discretion of the Court to impose appropriate monetary sanctions upon counsel or a pro se litigant when the litigant fails to appear before Court at a conference or adequately prepare the case for trial. Rule 11(b) of the Local Rules of Civil Procedure.

         This Court has previously evaluated when involuntary dismissal for Plaintiff's failure to prosecute was justified in Balkum v. Cty. of Monroe, No. ...


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