United States District Court, S.D. New York
ORDER OF DISMISSAL
KENNETH M. KARAS, DISTRICT JUDGE.
Deante Clay Harris ("Plaintiff") initiated this
Action by filing a Complaint on February 2, 2017. (Dkt. No.
1.) Defendants Answered on June 29, 2017. (See Ans.
(Dkt. No. 13).) Following motion practice, the Court
partially granted and partially denied Defendants' Motion
for Summary Judgment on October 15, 2019. (See Op.
& Order ("Op.") (Dkt. No. 70).) In that
Opinion, the Court scheduled a status conference for November
7, 2019, (id. at 34), which was later rescheduled
for December 3, 2019, (Dkt. No. 72). On December 3, 2019, the
Court was informed by defense counsel that Plaintiff had been
transferred to a different facility than the one recorded as
his address on the docket, Mid-State Correctional Facility
("Mid-State"). Despite calling the number provided
multiple times, the Court was unable to reach Plaintiff at
the time of the conference. Nor has Plaintiff updated his
address on the record or further communicated with the Court.
December 4, 2019, the Court issued an Order to Show Cause
giving Plaintiff 30 days to show why the Court should not
dismiss the Action. (See Order to Show Cause (Dkt.
No. 73).) The Order to Show Cause was mailed to the address
on record. (See Dkt. (entry for Dec. 5, 2019).)
Plaintiff has not responded. At the beginning of this Action
Plaintiff was instructed to notify the Court of any address
changes or risk dismissal of his case. (See Order of
Service 3 (Dkt. No. 6).)
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 *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 commenced this Action on
February 2, 2017, nearly three years ago. (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 Order of Service 3.)
Plaintiffs last substantive communication with the Court
regarding his case was his Opposition to Defendants'
Motion for Summary Judgment, which was filed on November 13,
2018, well over a year ago. (See Pl.'s Mem. of
Law in Opp'n to Mot. for Summ. J. (Dkt. No. 63).)
Plaintiff has not communicated with the Court regarding this
Action at all since April 4, 2019, which was a notice of
change of address. (See Dkt. No. 68.) Despite being
scheduled for a status conference on December 3, 2019,
Plaintiff did not appear or give notice to the Court
regarding why he could not appear. Defendants and the Court
were unable to reach him at either his previous number or the
number that defense counsel provided to the Court. The
Court's Order to Show Cause, mailed to Plaintiff on
December 5, 2019, 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 mailed to the address on
record, but Plaintiff never responded.
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 WL4805767, at *1
(N.D.N.Y. Sept. 9, 2013) (dismissing case for 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 ...