United States District Court, W.D. New York
DECISION AND ORDER
J. SIRAGUSA UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
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).
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.
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.
Court has previously evaluated when involuntary dismissal for
Plaintiff's failure to prosecute was justified in
Balkum v. Cty. of Monroe, No. ...