The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANTHONY GRICE,
Plaintiff,
ORDER
-against- 17-CV-0476(JS)(ARL)
OFFICER SPERLING, COUNTY OF NASSAU,
NASSAU COUNTY SHERRIFF’S DEPARTMENT,
NASSAU COUNTY CORRECTIONAL FACILITY,
CORRECTION OFFICERS JOHN DOE 1-10, and
ARMOR CORRECTIONAL HEALTH SERVICES, INC.,
Defendants.
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APPEARANCES
For Plaintiff: Anthony Grice, pro se
113-33 204th Street
St. Albans, New York 11412
For Nassau County Liora M. Ben-Sorek, Esq.
Defendants: Nassau County Attorney’s Office
One West Street
Mineola, New York 11501
For Defendant John J. Doody, Esq.
Armor Correctional John A. Anselmo, Esq.
Health Services, Inc: Lewis Brisbois Bisgaard & Smith LLP
77 Water Street, Suite 200
New York, New York 10005
SEYBERT, District Judge:
On or around January 23, 2017, incarcerated pro se
plaintiff Anthony Grice (“Plaintiff”) filed a Complaint in this
Court pursuant to 42 U.S.C. § 1983 together with an application to
proceed in forma pauperis (“IFP”). (Compl., D.E. 1; IFP Mot.,
D.E. 2.) On February 6, 2017, the Court issued an Order granting
IFP, directing service of the Complaint, and dismissing claims
against Nassau County Correction Center. (See generally Feb. 6
2017 Order, D.E. 6; id. at 2 n.1.) On March 29, 2017, Defendant
Officer Sperling filed an Answer (D.E. 10) and, on March 30, 2017,
Magistrate Judge Arlene R. Lindsay entered a discovery scheduling
order (Scheduling Order, D.E. 11). However, the Scheduling Order
that was mailed to Plaintiff was returned to the Court and marked
“Return to Sender,” “Unable to Forward,” and “Unclaimed.” (See
D.E. 15.)
On February 23, 2017, Plaintiff initiated another action
(assigned Docket Number 17-CV-1232), arising out of the same events
asserted here, against Officer Sperling, the Nassau County
Sheriff’s Department (the “Sheriff’s Department”), the County of
Nassau (“Nassau County”), and Michael J. Sposato (“Sheriff
Sposato”). In an Order dated August 2, 2017, the Court granted
IFP, dismissed Plaintiff’s claims against the Sheriff’s Department
with prejudice and against Nassau County and Sheriff Sposato
without prejudice, and consolidated Plaintiff’s second action with
this action “[b]ecause the remaining claims against Officer
Sperling . . . are repetitive of the claims alleged in the First
Complaint and are against the same Defendant.” (Aug. 2, 2017
Order, D.E. 20.)
On November 2, 2017, Judge Lindsay directed Plaintiff to
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to show cause, in writing, as to why this case should not be
dismissed for failure to prosecute. (Nov. 2, 2017 Order, D.E.
28.) On February 13, 2018, counsel appeared on behalf of Plaintiff
(D.E. 35) and requested leave to file an amended complaint (D.E.
36.) The Court entered various orders regarding the parties’
consent to an amended complaint and on April 23, 2018, Plaintiff
filed an amended Complaint. (Am. Compl., D.E. 47.) After the
County Defendants and defendant Armor Correctional Health
Services, Inc. (“Armor”) filed Answers (D.E. 49 and D.E. 53,
respectively), Plaintiff’s counsel filed a notice to withdraw as
counsel on October 23, 2018 (see D.E. 53). On November 16, 2018,
this Court held a hearing and granted Plaintiff’s counsel’s motion
to withdraw “with Plaintiff’s consent, and with no opposition from
defendants.” (Nov. 16, 2018 Min. Entry, D.E. 55.) Thereafter,
Judge Lindsay scheduled a hearing for December 17, 2018 and
Plaintiff failed to appear. (Dec. 17, 2018 Min. Entry, D.E. 56.)
Judge Lindsay rescheduled the hearing to January 8, 2019 and warned
Plaintiff that his failure to appear would result in a
recommendation to this Court “that the action be dismissed with
prejudice.” (Id.) Both the Clerk of the Court and Defendants
mailed a copy of Judge Lindsay’s December 17, 2018 Order to
Plaintiff at his address of record. (See id.; see also D.E. 58).
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On January 2, 2019, mail sent to Plaintiff at his address of record
was returned to the Court as undeliverable and marked “Return to
Sender; Not Deliverable as Addressed; Unable to Forward.” (See
D.E. 56.) To date, Plaintiff has not provided an updated address
nor has he otherwise communicated with the Court.
The Court finds that given the circumstances, dismissal
without prejudice is appropriate. It is within the Court’s
inherent power “to manage its own affairs so as to achieve the
orderly and expeditious disposition of cases.” Brown v. Dantzler,
No. 09-CV-0921, 2009 WL 2899869, at *2 (E.D.N.Y. Sept. 3, 2009)
(citing Lewis v. Rawson, 564 F.3d 569, 575 (2d Cir. 2009)).
“Consistent with that inherent authority,” Federal Rule of Civil
Procedure 41(b) empowers the Court, “in the exercise of its sound
discretion, to dismiss an action ‘[i]f the plaintiff fails to
prosecute[.]’” Id. (quoting FED. R. CIV. P. 41(b)). When dismissing
a case for failure to prosecute, the Court considers whether:
(1) the plaintiff’s failure to prosecute
caused a delay of significant duration;
(2) plaintiff was given notice that further
delay would result in dismissal; (3) defendant
was likely to be prejudiced by further delay;
(4) the need to alleviate court calendar
congestion was carefully balanced against
plaintiff’s right to an opportunity for a day
in court; and (5) the trial court adequately
assessed the efficacy of lesser sanctions.
Id. (quoting Lewis, 564 F.3d at 576).
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All factors weigh in favor of dismissal. First, the
docket is riddled with evidence of Plaintiff’s on-and-off
participation in this action. More seriously, he has not
communicated with the Court for two years. As such, dismissal is
appropriate where, as here, Plaintiff has engaged in a “pattern of
dilatory conduct” resulting in “an action lying dormant with no
significant activity to move it.” Barahman v. Sullivan, No. 87-
CV-2405, 1992 WL 226293, at *1 (E.D.N.Y. May 15, 1992). As for
the second factor, the Court has tried to provide Plaintiff with
notice but has no means of doing so because he has not updated his
address in over two years.1 “The duty to inform the Court and
defendants of any change of address is an obligation that rests
with all pro se plaintiffs.” Alomar v. Recard, No. 07-CV-5654,
2010 WL 451047, at *2 (S.D.N.Y. Feb. 9, 2010) (internal quotation
marks and citation omitted); Laney v. Ramirez, No. 10-CV-9063,
2011 WL 6594491, at *1 (S.D.N.Y. Dec. 22, 2011) (collecting cases);
Ling v. Suffolk Co. Corr. Facility, No. 00-CV-4339, 2009 WL
1918374, at *1 (E.D.N.Y. June 29, 2009) (Seybert, J.) (adopting
1 Moreover, on November 17, 2020, the Clerk’s office attempted to
contact Plaintiff by phone at his number of record and left a
voicemail informing him that mail sent to him at the address of
record has been returned as undeliverable, he should update his
address of record in writing, and, per prior court orders, his
failure to do so may result in dismissal of this action.
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report and recommendation and dismissing pro se complaint without
prejudice where the plaintiff failed to communicate with the Court
for two years and he had not “contacted the Court with his current
address, as is his responsibility.”). The third factor further
supports dismissal because “when a plaintiff has unreasonably
delayed, prejudice to the defendants may be presumed.” Alomar,
2010 WL 451047, at *2. As to the fourth factor, “[i]t is not an
efficient use of the Court’s . . . resources to permit this case
to languish on the docket in the hope that plaintiff will reappear
in the future.” Davison v. Grillo, No. 05-CV-4690, 2006 WL
2228999, at *2 (E.D.N.Y. Aug. 3, 2006). Finally, as for the fifth
factor, “no lesser sanction would be effective, since petitioner
would be unaware that any sanction had been imposed.” Lewis v.
Power, No. 04-CV-6128, 2007 WL 160759, at *2 (W.D.N.Y. Jan. 17,
2007).
In summary, “the facts of the present case strongly
indicate that [Plaintiff] has not only failed to prosecute his
claims, but has apparently abandoned his case altogether.”
Baraham, 1992 WL 226293, at *1. Accordingly, this action is
DISMISSED without prejudice for failure to prosecute.
The Clerk of the Court is directed to enter judgment
accordingly and mark this case CLOSED. Within fourteen (14) days
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of the date of this Order, Defendants shall confer and mail a copy
of this Order to the pro se Plaintiff at his address of record and
file proof of service to the docket.2
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is denied for the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-
45 (1962).
SO ORDERED.
/s/ JOANNA SEYBERT_______
Joanna Seybert, U.S.D.J.
Dated: December 4 , 2020
Central Islip, New York
2 It is likely that this Order will also be returned to Defendants
as undeliverable. However, like all of the Orders in this case,
it will be posted to the Court’s Electronic Case Filing system and
may be viewed there.
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