United States District Court, S.D. New York
OPINION AND ORDER
PAUL OETKEN United States District Judge.
Richard Draeger, who was formerly incarcerated at the Eric M.
Taylor Center (“EMTC”) on Riker's Island, is
proceeding pro se and in forma pauperis. He
filed this action under 42 U.S.C. § 1983 on April 14,
2017 (Dkt. No. 2), alleging that from December 28, 2016, to
December 29, 2016, defendant-corrections officers denied him
medical attention at EMTC.
August 21, 2017, Defendants informed the Court that Plaintiff
was discharged from EMTC on or about July 21, 2017. (Dkt. No.
17.) Plaintiff did not, however, update the Court with his
address. On August 22, 2017, the Court ordered Plaintiff to
provide Defendants with validly executed medical releases by
September 21, 2017, and warned him that failure to provide
said releases could result in dismissal for failure to
prosecute. (Dkt. No. 18.) On October 11, 2017, the Court
ordered Plaintiff to (1) inform the Court of his current
address; and (2) explain why he has failed to provide
Defendants with his medical releases. Again, the Court warned
Plaintiff that failure to respond in writing could result in
dismissal of his case for failure to prosecute. (Dkt. No.
20.) To date, Plaintiff has not responded. On October 30,
2017, Defendants moved to dismiss the case for failure to
prosecute. (Dkt. No. 21.)
defendant may seek dismissal “[i]f the plaintiff fails
to prosecute or to comply with th[e Federal Rules] or a court
order.” Fed.R.Civ.P. 41(b). Such a dismissal is
“the harshest of sanctions, ” to be used against
a pro se plaintiff's claim “only when the
circumstances are sufficiently extreme.” Baptiste
v. Sommers, 768 F.3d 212, 217 (2d Cir. 2014) (per
curiam) (first quoting Mitchell v. Lyons Prof'l
Servs., Inc., 708 F.3d 463, 467 (2d Cir.2013), then
quoting LeSane v. Hall's Sec. Analyst, Inc., 239
F.3d 206, 209 (2d Cir.2001)) (internal quotation marks
omitted). A Rule 41(b) dismissal must also “be
proceeded by particular procedural prerequisites, ”
including notice. Id. (quoting Mitchell,
708 F.3d at 467) (internal quotation marks omitted). “A
district court considering a Rule 41(b) dismissal must weigh
five factors, ” none of which is generally dispositive:
(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.
Id. at 216 (second quoting Lucas v. Miles,
84 F.3d 532, 535 (2d Cir. 1996)).
case, these five factors weigh in favor of dismissal. First,
Plaintiff has not communicated with the Court for nearly four
months. Second, for over two months, he has failed to comply
with Court orders to provide medical releases to Defendants,
despite twice being advised that failure to comply may result
in dismissal. In addition, Plaintiff has failed to inform the
Court of his current address. See United States ex rel
Roundtree v. Health & Hosps. Police Dep't of New
York, No. 06 Civ. 212, 2007 WL 1428428, at *1 (S.D.N.Y.
May 14, 2007) (“[D]efendants are at a severe
disadvantage in not knowing the address of the pro se
litigant who has brought suit against them . . . [and] it is
a plaintiff's obligation to inform the Pro Se Office of
any change in address.”). Third, further delay would
prejudice Defendants. Defendants cannot reasonably be
expected to proceed without Draeger's medical releases,
which they need to conduct the necessary investigation before
answering the allegations in his complaint.
there is no other realistic way for the case to proceed
beyond dismissal for failure to prosecute: At this stage, in
light of Plaintiff's failure to prosecute his case
diligently, Draeger's interest in airing his claims is
outweighed by the Court's interest in managing its
docket. And “there is nothing in the record to suggest
that a sanction less serious than dismissal will resolve the
plaintiff's failure to cooperate.” Singleton v.
City of New York, No. 14 Civ. 9355, 2015 WL 9581781, at
*2 (S.D.N.Y. Dec. 30, 2015). In some cases, the Court might
consider imposing a financial penalty, but where, as here, a
pro se plaintiff is proceeding in forma
pauperis, a financial sanction may be even stronger
medicine than dismissal.
put, there is “no indication” that Draeger
“wishes to continue with this action.” Garcia
v. Tal on 1st Inc., No. 14 Civ. 9042, 2016 WL 205442, at
*2 (S.D.N.Y. Jan. 15, 2016). “‘[T]he
circumstances are sufficiently extreme' to warrant
dismissal.” Id. (quoting Lucas, 84
F.3d at 535); see also Brow v. City of New York, 391
F. App'x 935, 936 (2d Cir. 2010) (affirming dismissal of
a case in which the plaintiff repeatedly failed to appear for
his own deposition).
in light of the factors mentioned above, Defendants'
motion to dismiss for failure to prosecute is GRANTED. The
Clerk of Court is directed to enter ...