United States District Court, N.D. New York
SCOTT M. HUTCHEON, Plaintiff,
E. FARNUM, Defendant.
M. HUTCHEON Plaintiff pro se.
OF THE NEW YORK STATE ATTORNEY GENERAL Attorneys for
MATTHEW P. REED, ESQ.
DECISION AND ORDER
D'Agostino, U.S. District Judge.
February 2, 2018, Plaintiff commenced this action pro
se pursuant to 42 U.S.C. § 1983 against Defendant
E. Farnum. See Dkt. No. 1-1. Plaintiff asserts that
Defendant Farnum, who was employed at Marcy Correctional
Facility, violated his constitutional rights under the Eighth
Amendment. See Id. at 1-2.
August 20, 2018, Magistrate Judge Christian F. Hummel issued
the Mandatory Pretrial Discovery and Scheduling Order,
setting a discovery deadline for February 20, 2019, a copy of
which was served via regular mail to Plaintiffs provided
address. See Dkt. No. 20; Text Entry dated Aug. 20,
2018. On January 28, 2019, Plaintiff failed to appear for his
deposition, after having been served with a notice of same by
Defendant on January 2, 2019. See Dkt. No. 26-2 at
¶¶ 8, 10, 11; Dkt. No. 26-2, Ex. C. Plaintiff did
not contact Defendant's counsel or communicate that he
was unable to attend, nor was the Notice of Deposition
returned to Defendant as undeliverable. See Dkt. No.
26-2 at ¶¶ 9, 10. On February 4, 2019, Magistrate
Judge Hummel set a telephone status conference for February
15, 2019, and advised Plaintiff that "fail[ure] to
participate in court conferences or abide by Court Orders may
result in the dismissal of [the] action." Dkt. No. 23.
Notice was sent to Plaintiffs provided address, see
id, after which Plaintiff failed to appear and did not
contact the Court. See Text Min. Entry dated Feb.
April 2, 2019, Defendant moved to dismiss the current matter
for failure to prosecute pursuant to Federal Rule of Civil
Procedure 41(b) and failure to obey a discovery order
pursuant to Federal Rule of Civil Procedure 37(d).
See Dkt. No. 26-1. Plaintiff was afforded until
April 26, 2019, to file a response. See Dkt. No. 25.
To date, Plaintiff has not responded to Defendant's
Motion to Dismiss, filed objections to Magistrate Judge
Hummel's Report-Recommendation and Order, or engaged in
any activity or communication with the Court since February
2018. See Dkt. Nos. 26, 27.
Report-Recommendation and Order dated November 4, 2019,
Magistrate Judge Hummel recommended that Plaintiffs complaint
be dismissed for failure to prosecute, and in the
alternative, failure to obey a discovery order. See
Dkt. No. 27 at 10-11. Magistrate Judge Hummel considered the
five factors the court is required to consider in determining
whether dismissal for failure to prosecute pursuant to Rule
41(b) of the Federal Rules of Civil Procedure is appropriate.
See Id. at 4. Specifically, Magistrate Judge Hummel
found that "[e]ven considering plaintiffs pro
se status, it is recommended that the dismissal of
the action be with prejudice due to plaintiffs apparent
abandonment of this case as evidenced by his lack of
communication and participation over the last twenty months,
including his failure to appear for his deposition, telephone
status conference, or respond to defendant's motion to
dismiss." Id. at 7. Having considered the
relevant factors, Magistrate Judge Hummel recommended that
the Court find that they "weigh decidedly in favor of
party files specific objections to a magistrate judge's
report-recommendation and order, the district court
"make[s] a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C.
§ 636(b)(1)(c). However, when a party files
"[g]eneral or conclusory objections, or objections which
merely recite the same arguments [that he] presented to the
magistrate judge," the court reviews those
recommendations for clear error. O'Diah v.
Mawhir, No. 9:08-CV-322, 2011 WL 933846, *2 (N.D.N.Y.
Mar. 16, 2011) (citations and footnote omitted). After the
appropriate review, "the court may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge." 28 U.S.C. §
41(b) of the Federal Rules of Civil Procedure provides that,
[i]f 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). Dismissal of an action with prejudice
under this rule is a "harsh remedy to be utilized only
in extreme situations." LeSane v. Hall's Sec.
Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001)
(internal quotation marks and citation omitted). This is
particularly true where a plaintiff is proceeding pro se.
See, e.g., Lucas v. Miles, 84 F.3d 532, 535 (2d Cir.
1996) (holding that the circuit court will give due deference
to the district court's Rule 41(b) dismissal of a pro
se litigant's complaint "only when the
circumstances are sufficiently extreme").
a plaintiff s pro se status, Rule 41(b) gives the
district court explicit authority to dismiss a case where the
plaintiff fails to comply with the court's orders or
otherwise fails to prosecute the action
"diligently." Lyell Theatre Corp. v. Loews
Corp., 682 F.2d 37, 43 (2d Cir. 1982). As explained in
Lyell Theatre, this authority "is vital to the
efficient administration of judicial affairs and provides
meaningful access for other prospective litigants to
overcrowded courts." Id. at 42.
determining whether dismissal for failure to prosecute is
warranted, the district court must consider the following
factors, none of which are dispositive: (1) the duration of
the plaintiffs failures; (2) whether the plaintiff received
notice that further delays would result in dismissal; (3)
whether the defendant is likely to be prejudiced by further
delay; (4) whether an appropriate balance has been struck
between alleviating the court's calendar congestion and
protecting the litigants' due process rights; and (5)