United States District Court, S.D. New York
JEREMY L. TUTORA, Plaintiff,
SGT. GESSNER #138, et al., Defendants.
ORDER OF DISMISSAL
KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE.
March 27, 2019, the Court issued an Opinion & Order
dismissing Plaintiffs claims without prejudice and giving him
30 days to file a second amended complaint. (Op. & Order
(Dkt. No. 48).) Plaintiff did not file a second amended
complaint. On October 15, 2019, over six months after the
Opinion & Order was issued, the Court issued an Order to
Show Cause as to why the case should not be dismissed for
failure to prosecute. (Order to Show Cause (Dkt. No. 51).)
Plaintiff has not filed a second amended complaint or
otherwise communicated with the Court regarding this Action
since the Opinion & Order was issued over eight months
Court has the authority to dismiss a case for failure to
prosecute. See Fed. R. Civ. P. 41(b). Rule 41(b) of
the Federal Rules of Civil Procedure provides that a case may
be involuntarily dismissed if a plaintiff "fails to
prosecute or to comply with these rules or a court
order." Although Rule 41(b) expressly addresses a
situation in which a defendant moves to dismiss for failure
to prosecute, it has long been recognized that a district
court has the inherent authority to dismiss for failure to
prosecute sua sponte. See LeSane v. Hall's Sec.
Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (citing
Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)).
dismissal under Rule 41(b) is subject to the sound discretion
of the district courts, see U.S. ex rel. Drake v. Norden
Sys., Inc., 375 F.3d 248, 250-51 (2d Cir. 2004), the
Second Circuit has stated that a Rule 41(b) dismissal is a
"harsh remedy to be utilized only in extreme
situations," LeSane, 239 F.3d at 209 (internal
quotation mark omitted) (quoting Theilmann v. Rutland
Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972)). The
Second Circuit has further cautioned, "pro se plaintiffs
should be granted special leniency regarding procedural
matters." Id. (citing Lucas v. Miles,
84 F.3d 532, 535 (2d Cir. 1996)). "However, even pro se
litigants must prosecute claims diligently, and dismissal
with prejudice is warranted where the [c]ourt gives
warning." Jacobs v. County of Westchester, No.
99-CV-4976, 2008 WL 199469, at *3 (S.D.N.Y. Jan. 22, 2008).
exercising its discretionary authority to dismiss for failure
to prosecute, a district court should consider the following
 the duration of the plaintiffs failures,  whether
plaintiff had received notice that further delays would
result in dismissal,  whether the defendant is likely to
be prejudiced by further delay,  whether the district
judge has take[n] care to strik[e] the balance between
alleviating court calendar congestion and protecting a
party's right to due process and a fair chance to be
heard . . . and  whether the judge has adequately assessed
the efficacy of lesser sanctions.
Hardimon v. Westchester County, No. 13-CV-1249, 2014
WL 2039116, at *1 (S.D.N.Y. May 16, 2014) (alterations in
original) (quoting LeSane, 239 F.3d at 209). No.
single factor is dispositive. See LeSane, 239 F.3d
at 210; Hardimon, 2014 WL 2039116, at *1.
Court concludes that these factors weigh in favor of
dismissal of this Action, Plaintiff filed the Complaint on
December 1, 2017, (Compl. (Dkt. No. 1)), and filed an Amended
Complaint on February 14, 2018, (Am. Compl. (Dkt. No. 9)).
Following motion practice, the Court dismissed Plaintiffs
claims without prejudice and gave Plaintiff 30 days to file
an amended complaint, warning that if Plaintiff did not meet
this deadline, "his claims may be dismissed with
prejudice." (Op. & Order 21.) The Clerk of Court
mailed a copy of the Opinion & Order to Plaintiff.
(See Dkt. (entry for Mar. 27, 2019).) When Plaintiff
did not amend within 30 days or otherwise communicate with
the Court, the Court issued the Order to Show Cause on
October 15, 2019, stating that "[t]he Court may dismiss
this case with prejudice without further notice in the event
that good cause is not shown" within 30 days. (Order to
Show Cause 1.) The Order to Show Cause was also mailed to
Plaintiff, (see Dkt. (entry for Oct. 16, 2019)), but
Plaintiff did not file a second amended complaint. It has now
been over 45 days since the Order to Show Cause was issued,
and Plaintiff has failed to communicate with the Court at
this Action is dismissed without prejudice for failure to
prosecute. See Osborn v. City of New York, No.
15-CV-9730, 2018 WL 2059944, at *3 (S.D.N.Y. Apr. 6, 2018)
(dismissing case where the plaintiff had "gone
incommunicado ... for at least five months, a duration of
sufficient significance so as to tip in favor of dismissal as
a matter of law"), adopted fry 2018 WL 2059842
(S.D.N.Y. May 1, 2018), appeal dismissed No.
18-1639, 2019 WL 2369924 (2d Cir. Jan. 16, 2019); Mena v.
City of New York, No. 15-CV-3707, 2017 WL 6398728, at *2
(S.D.N.Y. Dec. 14, 2017) (noting that "a pro se
plaintiff is not exempt from complying with court orders and
must diligently prosecute his case").
Clerk of Court is directed to mail a copy of this Order to