Opinion
No. 02 Civ. 10298 (BSJ) (DF).
October 25, 2004
REPORT AND RECOMMENDATION
TO THE HONORABLE BARBARA S. JONES, U.S.D.J.:
For the reasons set forth below, I recommend that this action be dismissed, sua sponte and without prejudice, under Rules 4(m) and 41(b) of the Federal Rules of Civil Procedure, on the grounds that Plaintiff has failed to effect timely service of process and has failed to prosecute the action.
BACKGROUND
Plaintiff, who refers to himself as both John Doe and Tony Harris ("Plaintiff"), is incarcerated and proceeding pro se. He commenced this action by filing a Complaint on December 27, 2002, and simultaneously made a request to proceed in forma pauperis. ( See Complaint (Dkt. 2); Declaration in Support of Request to Proceed In forma Pauperis (Dkt. 1).) On the same day, Chief Judge Michael B. Mukasey issued an order granting Plaintiff's request to proceed in forma pauperis. (Order issued December 27, 2002 (Dkt. 3) at 1.) Noting, however, that the Complaint failed to comply with Rule 8 of the Federal Rules of Civil Procedure, in that the Court was unable to "discern what the plaintiff's claims are and the grounds upon which they rest," the Court directed Plaintiff to submit an amended complaint in compliance with Rule 8 within 60 days of the Order. (Order at 2.) On April 10, 2003, having received no amended complaint from the Plaintiff, Judge Mukasey issued a judgment dismissing the action. (Civil Judgment (Dkt. 4).)
On April 23, 2003, Plaintiff submitted a "Notice of Motion for Relief and [To] Amend Judgment" (Dkt. 5), and on October 15, 2003, the Court vacated its prior judgment and granted Plaintiff another 60 days to comply with its original Order. (Dkt. 9.) Prior to that deadline, Plaintiff did file an Amended Complaint, which was accepted by the Court's Pro Se Office and docketed on December 3, 2003. (Amended Complaint, dated November 20, 2003 ("Am. Compl.") (Dkt. 10).)
Liberally construing his allegations, Plaintiff's Amended Complaint asserts claims under 42 U.S.C § 1983, for false arrest, false imprisonment, and/or malicious prosecution, as well as the use of excessive force. (Am. Compl. IV.) He alleges that corrections officers wrongly accused him of violating certain prison rules, that criminal charges were wrongfully instituted against him, that the City of New York failed to act after Plaintiff had prevailed in an Article 78 proceeding, and that he was "shackled and manacled . . . [in a] wanton infliction of pain." ( Id.)
The docket in this case indicates that a Summons was issued on January 9, 2004, but there is no indication that Plaintiff ever enlisted the assistance of the U.S. Marshal's service to serve any of the defendants. On May 13, 2004, after Plaintiff's time to serve the Summons and Amended Complaint on defendants under Fed.R.Civ.P. 4(m) had already expired, the Court, sua sponte, sent Plaintiff a letter extending his time for service until June 30, 2004. That letter, which was mailed to a Rikers Island address that Plaintiff had provided to the Court (18-18 Hazen Street, East Elmhurst, New York 11370), was returned to the Court as undeliverable with the indication, "inmate not in system by name or B/C numbers."
In August, 2004, it came to this Court's attention that, in connection with another case filed in the Court ( Harris v. The City of New York, No. 03 Civ. 03561 (MBM)), Plaintiff had submitted a different address to the Court, indicating that he was then incarcerated at the Fishkill Correctional Facility, Box 1245, Beacon, NY 12508. ( See Docket in Harris, No. 03 Civ. 03561.) Plaintiff had also provided another prisoner identification number in connection with that case. Therefore, on August 12, 2004, the Court sent Plaintiff another letter, to this apparent new address, advising him again of the requirements of Rule 4(m) and of his obligation to keep the Court informed of his address, and granting him, sua sponte, an additional extension of time to serve an Amended Summons and his Amended Complaint. The Court warned Plaintiff that, if he did not serve the defendants by September 30, 2004, then, unless he could show good cause for such failure, he could face dismissal of the action. The Court further warned Plaintiff that he could face dismissal if he did not contact the Court by September 15, 2004, with his updated contact information. The Court's August 12 letter was not returned as undeliverable, and it is therefore the Court's assumption that it was received by Plaintiff.
To date, the Court has heard nothing from Plaintiff with respect to this case. He has neither provided contact information, nor made service on defendants, nor sought a further extension of time to do so. Indeed, Plaintiff has apparently taken no steps to prosecute this action for nearly a year.
DISCUSSION
Rule 4(m) provides, in pertinent part: "[I]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, . . . on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time." Here, the Court has provided Plaintiff with notice that this action would be subject to dismissal, if the Amended Summons and Amended Complaint were not served within a specified time. As service has apparently not been made within that time, the action should be dismissed without prejudice under the terms of the Rule. See Hemphill v. Scott, No. 93 Civ. 8778 (LAK), 1996 U.S. Dist. LEXIS 22252 (S.D.N.Y. 1996); Klyumel v. United Nations, No. 92 Civ. 4231 (PKL), 1993 WL 42708 (S.D.N.Y. 1993).
Further, a plaintiff has a general obligation to prosecute his case diligently. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). Where a plaintiff fails to meet this obligation, his action may be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. See West v. City of New York, 130 F.R.D. 522, 526 (S.D.N.Y. 1990) (citation omitted) ("A plaintiff's lack of diligence alone is enough for dismissal."); see also Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 667 (2d Cir. 1980) ("dismissal is justified for [the plaintiff's] failure to prosecute at all").
Federal Rule of Civil Procedure 41(b) provides that "[f]or failure of the plaintiff to prosecute or to comply with . . . any order of court, a defendant may move for dismissal of an action or of any claim against the defendant." Fed.R.Civ.P. 41(b). The Court, however, need not wait for a motion to dismiss, see Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962), and is not required to provide notice of the dismissal, see West, 130 F.R.D. at 524. Indeed, because district courts are "necessarily vested" with the control required "to manage their own affairs so as to achieve the orderly and expeditious disposition of cases," this Court may even dismiss an action with prejudice, where a plaintiff fails to prosecute his case. Link, 370 U.S. at 630-31.
In deciding whether to dismiss an action for failure to prosecute, the Court should consider the following factors: "(1) the duration of plaintiff's failures or non-compliance; (2) whether plaintiff had notice that such conduct would result in dismissal; (3) whether prejudice to the defendant is likely to result; (4) whether the court balanced its interest in managing its docket against plaintiff's interest in receiving an opportunity to be heard; and (5) whether the court adequately considered the efficacy of a sanction less draconian than dismissal." Baffa v. Donaldson, Lufkin Jenrette Sec. Corp., 222 F.3d 52, 63 (2d Cir. 2000) (citations omitted). However, not all of these factors need be present to warrant dismissal, and they apply regardless of whether plaintiff is represented by counsel or proceeding pro se. See Gautam v. N.Y.C. Mayor's Office of Operation, No. 92 Civ. 1014 (SAS), 1996 WL 422264, *1 (S.D.N.Y. 1996) (citations omitted).
In this action, the Court has reached out to Plaintiff, searching the records of other cases filed in this Court, in order to find an address at which Plaintiff could be contacted. The Court has explicitly informed Plaintiff of his obligation to effectuate service on defendants, and has cautioned Plaintiff regarding the consequences he could face for failure to proceed with the action. While the Court's first effort to reach Plaintiff was unsuccessful, the Court's second letter to Plaintiff was apparently delivered. Even if Plaintiff did not receive either of the Court's letters, it is now eleven months since Plaintiff has taken any steps at all to prosecute this case, or given any indication that he wishes to pursue the action.
Furthermore, any uncertainty as to whether Plaintiff has received the Court's notice is a result of Plaintiff's own failure to keep the Court apprised of his whereabouts. It is Plaintiff's obligation to inform the Court of his current address. See Handlin v. Garvey, No. 91 Civ. 6777 (AGS), 1996 WL 673823, *5 (S.D.N.Y. 1996); Pierce v. Ross, 94 CV 218, 1995 WL 129176, *2 (E.D.N.Y. 1995); Cardona v. Forster, No. 95-CV-1839, 1997 WL 599348, *1 (N.D.N.Y. 1997). It is not the Court's duty to reach out repeatedly to Plaintiff "to urge or require [him] to prosecute this action." Lukensow v. Harley Cars of New York, 124 F.R.D. 64, 66 (S.D.N.Y. 1989). The Court also notes that it has received no information suggesting that Plaintiff has been unable to contact the Court, because of special conditions of confinement, for example. On the contrary, Plaintiff appears to be both familiar with the procedure for notifying the Court of changes in his contact information and fully capable of doing so. In each of two other cases filed by Plaintiff in this Court, Nos. 03-Civ. 01617 and 03-Civ-03561, Plaintiff has, over the course of the past year, appropriately notified the Court four times of changes in his address. This makes it appear that Plaintiff is simply not interested in pursuing this particular action. Finally, this action was dismissed once before for failure to prosecute. This fact alone should have put Plaintiff on notice of the possibility that his inaction could result in the dismissal of his case. For all of these reasons, I respectfully recommend that this action be dismissed.
Because Plaintiff is proceeding pro se, I recommend that his claims be dismissed without prejudice. See Reynel v. Barnhart, No. 01 Civ. 6482, 2002 WL 2022429, at *1 (S.D.N.Y. Sept. 3, 2002) ("Given the plaintiff's pro se status, the Court deems it proper in this case that dismissal be without prejudice."). It may be that, despite the passage of time, and despite Plaintiff's demonstrated ability to contact the Court with respect to his other cases, there is nonetheless a reasonable explanation for Plaintiff's failure to contact the Court in this case. If such an explanation does exist, Plaintiff should be permitted to offer it.
CONCLUSION
For the reasons set forth above, I recommend that all claims asserted in the Amended Complaint in this action be dismissed without prejudice, pursuant to Federal Rules of Civil Procedure 4(m) and 41(b).Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Barbara S. Jones, United States Courthouse, 40 Centre Street, Room 2103, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 40 Centre Street, Room 631, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Jones. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).