United States District Court, S.D. New York
ANTIONE D. BATTS, Plaintiff,
CORRECTION OFFICER TOTH, Defendant.
ORDER OF DISMISSAL
KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE:
D. Batts ("Plaintiff) brings this pro se Action against
Correction Officer Toth ("Defendant").
(See Third Am. Compl. ("TAC") (Dkt. No.
52-1).) Defendant filed an Answer to the Third Amended
Complaint ("TAC") on December 27, 2017. (Ans. (Dkt.
No. 61).) On July 16, 2018, Plaintiff informed the Court of a
change of address. (Dkt. No. 64). On September 30, 2019, the
Court scheduled a status conference for October 21, 2019.
(See Dkt. No. 66.) On October 21, 2019,
Defendant's counsel appeared for the conference. However,
the Scheduling Notice for the conference, which had been
mailed to Plaintiff at the address on the record, was
returned as undeliverable, (see Dkt. (entry for Oct.
17, 2019)), and Plaintiff did not appear.
October 22, 2019, the Court issued an Order directing
Plaintiff to show cause within 30 days as to why this case
should not be dismissed for failure to prosecute. (Order to
Show Cause (Dkt. No. 67).) A copy of the Order was sent to
Plaintiff at the address listed on the docket. (See
Dkt. (entry for Oct. 23, 2019).) The mail was returned to the
Clerk of the Court as undeliverable. (See Dkt.
(entry for Nov. 14, 2019).) A copy of the Order was again
sent to Plaintiff at the address listed on the docket, (Dkt.
(entry for Nov. 25, 2019)), and again returned as
undeliverable, (Dkt. (entry for Jan. 3, 2020)).
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)). However,
it has also stated that the authority to invoke dismissal for
failure to prosecute is "vital to the efficient
administration of judicial affairs and provides meaningful
access for other prospective litigants to overcrowded
courts." Lyell Theatre Corp. v. Loews Corp, 682
F.2d 37, 42 (2d Cir. 1982).
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 *l (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 *l.
Court concludes that these factors weigh in favor of
dismissal of this Action. Plaintiff commenced this Action on
June 3, 2016. (See Dkt. No. 1.) Plaintiff was
advised of his obligation to promptly submit a written
notification to the Court in the event that his address
changed, and that failure to do so may result in dismissal of
the case. (See Dkt. No. 6 ("[I]t is Plaintiffs
obligation to promptly submit a written notification to the
Court if Plaintiff s address changes, and the Court may
dismiss the [A]ction if Plaintiff fails to do so.");
Dkt. No. 10 (same).) Indeed, in the past, Plaintiff has
timely submitted address changes to the Court. (See
Dkt. Nos. 44, 58, 65.) However, Plaintiff has not
communicated with the Court on any substantive matter in this
Action since his Opposition to Defendant's Motion To
Dismiss, submitted on August 8, 2017, (see Dkt. No.
53), and has not submitted anything to this Court regarding
this Action at all since July 16, 2018, (see Dkt.
No. 64). The Court's Order to Show Cause, mailed to
Plaintiff twice, indicated that Plaintiffs failure to show
cause within 30 days would result in the Court dismissing the
case with prejudice without further notice. (See
Order to Show Cause.) That Order was then returned to the
Court when sent to Plaintiffs address listed on the docket.
(See Dkt. (entries for Nov. 14, 2019 and Jan. 3,
Plaintiffs case is dismissed without prejudice for failure to
prosecute. See, e.g., 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"); Capogrosso v. Troyetsky, No. 14-CV-381,
2015 WL 4393330, at *5 (S.D.N.Y. July 17, 2015) (finding the
fact that the plaintiff "has not responded to efforts to
contact her" weighs in favor of dismissal for failure to
prosecute); Savatxath v. City of Binghamton, No.
12-CV-1492, 2013 WL 4805767, at *l (N.D.N.Y. Sept. 9, 2013)
(dismissing --- failure to prosecute after the plaintiff
"neglected to comply with an order . . . requiring him
to notify the court... as to why th[e] action should not be
dismissed for failure to prosecute"); Smalls v. Bank
of N.Y., Nos. 05-CV-8474, 07-CV-8546, 2008 WL 1883998,
at *4 (S.D.N.Y. Apr. 29, 2008) (dismissing case for failure
to prosecute where the court received no communication from
the plaintiffs for nearly two months); Robinson v. United
States, No. 03- CV-1001, 2005 WL 2234051, at *2
(S.D.N.Y. Sept. 8, 2005) ("Only the Plaintiff can be
responsible for notifying the court and the Defendant of his
updated address, and Plaintiffs failure to do so has made it
impossible to provide him any notice.").
Clerk of Court is directed to mail a copy of this ...