United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD UNITED STATES DISTRICT JUDGE.
Valerie Lynn Allen ("Plaintiff) filed this action on
August 4, 2016, alleging that Defendants violated her
constitutional rights. (Dkt. 1). On March 2, 2017, the Court
issued a Decision and Order that, among other things, granted
Plaintiffs motion for leave to proceed in forma
pauperis, and directed the United States Marshal to
serve copies of the summons and complaint upon Defendants if
Plaintiff did not file an amended complaint by April 14,
2017. (Dkt. 5). Plaintiff did not file an amended complaint
by April 14, 2017.
Court notes that the text appearing on the electronic docket
at entry six erroneously states that defendant Kephart was
served with a summons. (Dkt. 6). However, a review of the
proof of receipt and return documents reveals that the
summons was mailed out and then returned unexecuted.
(Id. at 1-2). Indeed, no summons was successfully
served upon Defendants. (See Id. at 1-4; Dkt. 7).
Furthermore, aside from updates made by the Clerk's
Office to Plaintiffs address based on the New York State
Department of Corrections and Community Supervision's
("NYSDOCCS") on-line inmate locator, there has been
no additional docket activity since December 8, 2017.
13, 2018, the Court issued an Order to Show Cause directing
Plaintiff to set forth in writing by July 6, 2018, through a
sworn affidavit her intention to continue to pursue this
action, as well as the reasons that the Court should not
dismiss the case for failure to prosecute. (Dkt. 8). The June
13th Order also informed Plaintiff that failure to comply
with the Order would result in the dismissal of her action.
(Id. at 3).
did not submit the sworn affidavit required by the June 13th
Order or otherwise contact the Court.
demand that plaintiffs provide contact information is no
esoteric rule of civil procedure, but rather the obvious
minimal requirement for pursuing a lawsuit." Dumpson
v. Goord, No. 00-CV-6039 CJS, 2004 WL 1638183, at *3
(W.D.N.Y. July 22, 2004). The failure to comply with this
requirement is grounds for the dismissal of the action.
See, e.g., Dong v. United States, No. 02 CIV. 7751
(SAS), 2004 WL 385117, at *3 (S.D.N.Y. Mar. 2, 2004)
("[T]he very fact that [the plaintiff] has been
inaccessible for the last two months-without notifying the
Court, the Government, or the Pro Se Office of a change of
address-strongly suggests that he is not diligently pursuing
this claim."); Ortiz v. United States, No. 01
CIV. 4665 (AKH), 2002 WL 1492115, at *2 (S.D.N.Y. July 11,
2002) (dismissing the complaint where the "[p]laintiff
has not even fulfilled his minimal obligation to keep the pro
se office of this Court informed of his change of
the Court's mailing of the June 13th Order was initially
returned as undeliverable. (Dkt. 9). It was only after
Plaintiffs address was updated by the Clerk's Office to
reflect Plaintiffs current residence at the Albion
Correctional Facility that the June 13th Order was delivered
to Plaintiff. (Dkt. 10). A review of the NYSDOCCS inmate
on-line locator reveals that this is, indeed, Plaintiffs
the Court's second attempt to reach Plaintiff was
returned to the Court as well, and carried a notation
indicating that Plaintiff had refused receipt of the Order.
(Id.). Accordingly, Plaintiff cannot avoid dismissal
on this ground by claiming the benefit of blissful ignorance
"since [she] [her]self was responsible for the
Court's inability to notify [her]."
Dumpson, 2004 WL 1638183, at *3; see Mathews v.
U.S. Shoe Corp., 176 F.R.D. 442, 445 (W.D.N.Y.1997)
(noting that even though the plaintiff never received a copy
of the order that was mailed to her, the fault could
"only be attributed either to plaintiffs deliberate
failure to claim the letter, or her failure to advise the
court of a change of address"). Therefore, based upon
Plaintiffs failure to maintain an updated address with the
Court and her refusal to accept receipt of the Court's
June 13th Order, the Court finds that dismissal is warranted.
However, even absent consideration for the Plaintiffs failure
to keep her mailing address up-to-date, the Court would still
find that dismissal for failure to prosecute is an
Rule of Civil Procedure 41(b) authorizes a district court to
dismiss an action "[i]f the plaintiff fails to prosecute
or to comply with [the] rules or a court order . . . ."
Fed.R.Civ.P. 41(b). While Rule 41 "refers to dismissal
upon motion of a defendant, the Supreme Court has made clear
that a court has the inherent authority to dismiss an action
sua sponte.'" Lopez v. Comm'r Soc. Sec,
110 F.Supp.3d 489, 491 (W.D.N.Y. 2015) (quotation omitted).
"While a harsh remedy, the rule is 'intended to
serve as a rarely employed, but useful, tool of judicial
administration available to district courts in managing their
specific cases and general caseload." Id.
dismissing a case under Rule 41(b), the district court must
weigh five factors:
(1)the duration of the plaintiffs 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 plaintiffs interest in
receiving a fair chance to be heard, and (5) whether the
judge has adequately considered a sanction less drastic than
Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir.
2014) (quotation omitted). Generally, no single factor in the
analysis is dispositive. Id. The Second Circuit has
"indicated that a pro se litigant's claim should be
dismissed for failure to prosecute only when the
circumstances are sufficiently extreme." Id.
(quotation omitted). Weighing the five factors listed above,
the Court finds that dismissal for failure to prosecute is
it has been twenty days since Plaintiffs response to the June
13th Order was due. The significance of Plaintiff s failure
to provide any response is compounded by the fact that she
has failed to submit any written communication to the Court
since September 6, 2016. (See Dkt. 4). Indeed, it
appears that Plaintiff has affirmatively refused to
accept the delivery of the Court's June 13th Order, (Dkt.
10), which suggests that Plaintiff has no intention of ever
submitting a response. The Court also notes that Plaintiff
did not file an amended complaint by the deadline provided in
the Court's March 2, 2017, Decision and Order. (Dkt. 5).
Accordingly, Plaintiffs failure to timely respond to the
Court's Order to Show Cause is viewed in light of her
pattern of dilatory conduct. See Flores v.
Massanari, No. 01CIV0517LAKRLE, 2001 WL 1029402, at *1
(S.D.N.Y. Sept. 5, 2001) (dismissing the action for failure
to prosecute after a month had passed since the plaintiffs
response to the court's order was due).
Plaintiff was on notice that her failure to comply with the
June 13th Order would result in dismissal. (Dkt. 8 at 3). The
June 13th Order stated that Plaintiffs failure to set forth
in writing through a sworn affidavit her intention to
continue to pursue her action, as well as the reasons her
case should not be dismissed, would result in the dismissal
of her case. (Id.). Despite this warning, the Court
has not received any contact, let alone a written response,
from Plaintiff. See Dumpson, 2004 WL 1638183, at
*2 ("Pro se plaintiffs are entitled to a degree