The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SAMUEL J. SMOLEN,
Plaintiff,
No. 18-CV-7621 (KMK)
v.
ORDER OF DISMISSAL
C.O. LAWTON P. BROWN, et al.,
Defendants.
KENNETH M. KARAS, United States District Judge:
On December 16, 2022, Defendants advised the Court that “the most recent mailing
address provided by Plaintiff for service is not current.” (Letter from Kathryn Martin, Esq. to
Court (Dec. 16, 2022) 1 (Dkt. No. 92).) Specifically, Defendants indicated that: “A copy of
[Defendants’ pre-motion] letter was served on Plaintiff at Wende Correctional Facility (i.e., the
mailing address provided on the docket) by mail [on November 30, 2022]. The mailing sent to
Plaintiff, [was], however, [] returned to this office as undeliverable by the U.S. Postal Service. A
handwritten note on the returned mailing indicate[d] that Plaintiff was discharged on July 19,
2022. A review of DOCCS’ incarcerated individual lookup website . . . reveal[d] that Plaintiff
was ‘released to another agency’ on that date. Plaintiff has failed to provide Defendants or the
Court with a current mailing address, as is his responsibility.” (Id.)
On December 21, 2022, Defendants filed their Motion for Summary Judgment on the
issue of exhaustion of administrative remedies and Plaintiff’s failure to protect claim. (Not. of
Mot. (Dkt. No. 93).) By Opinion & Order dated September 22, 2023, the Court denied
Defendants’ Motion, which Plaintiff had not opposed. (See Op. & Order (Dkt. No. 101).)
Thereafter, the Clerk of the Court mailed a copy of the Opinion & Order to Plaintiff at the
address provided to the Court and listed on the docket sheet located at Wende Correctional
Facility. (See Dkt. (entry for Sept. 25, 2023).)
On October 5, 2023, in advance of a status conference scheduled for October 12, 2023,
Defendants again notified the Court that “Plaintiff [had] failed to provide Defendants or the
Court with a current mailing address, as is his responsibility; therefore, [Defendants’ counsel has
been] unable to arrange his appearance for the October 12th conference as [she] would normally
for an incarcerated plaintiff.” (Letter from Kathryn Martin, Esq. to Court (Oct. 5, 2023) 1 (Dkt.
No. 102).) That same day, the Court issued an Order to Show Cause, directing Plaintiff to
“submit a written notification to the Court of his changed address or otherwise show cause, by no
later than November 6, 2023, as to why this case should not be dismissed for failure to
prosecute.” (Order to Show Cause 2 (Dkt. No. 103).) The Court warned that it could “dismiss
this case with prejudice without further notice in the event that good cause is not shown.” (Id.)
This 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)).
While 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 (quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d 853,
855 (2d Cir. 1972)). The Second Circuit has further cautioned, “pro se plaintiffs should be
granted special leniency regarding procedural matters.” Id. (citing Lucas v. Miles, 84 F.3d 532,
535 (2d Cir. 1996)). “However, even pro se litigants must prosecute claims diligently, and
dismissal with prejudice is warranted where the court gives warning.” Jacobs v. County of
Westchester, No. 99-CV-4976, 2008 WL 199469, at *3 (S.D.N.Y. Jan. 22, 2008).
Before exercising its discretionary authority to dismiss for failure to prosecute, a district
court should consider the following factors:
[1] the duration of the plaintiff’s failures, [2] whether plaintiff had received notice
that further delays would result in dismissal, [3] whether the defendant is likely to
be prejudiced by further delay, [4] 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 [5] 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); accord Baptiste v. Sommers,
768 F.3d 212, 216 (2d Cir. 2014) (per curiam). No single factor is dispositive. See LeSane, 239
F.3d at 210; Hardimon, 2014 WL 2039116, at *1.
The Court concludes that these factors weigh in favor of dismissal of this Action. As an
initial matter, Plaintiff has not communicated with the Court since May 23, 2022—nearly a year
and a half ago. (See Letter from Samuel Smolen to Court (May 23, 2022) (Dkt. 87).) 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
2 (Dkt. No. 4) (“[I]t is Plaintiff’s obligation to promptly submit a written notification to the Court
if Plaintiff’s address changes, and the Court may dismiss the action if Plaintiff fails to do so.”);
see also Order to Show Cause 2 (directing Plaintiff to submit a written notification to the Court
of his changed address and warning that, if he failed to do so, “[t]he Court may dismiss this case
with prejudice [for failure to prosecute] without further notice”).) However, Plaintiff has not
updated his address, he did not update his address upon being transferred or released from
Wende Correctional Facility, and Defendants do not have Plaintiff’s current address. (See, e.g.,
Letter from Kathryn Martin, Esq. to Court (Dec. 16, 2022) 1.) Nor has Plaintiff responded to the
Court’s October 5, 2023 Order To Show Cause. (See generally Dkt.)
In addition, the Court finds that no sanction less than dismissal will alleviate the ongoing
prejudice to Defendants of continuing to keep this Action alleging violations of his constitutional
rights—which has been pending for over five years, (see Dkt. Nos. 1–2)—open. See Ruzsa v.
Rubenstein & Sendy Attys at Law, 520 F.3d 176, 178 (2d Cir. 2010) (per curiam) (“[I]n light of
[the plaintiff’s] failure to respond to the notice threatening dismissal, it is . . . unclear that a
‘lesser sanction’ would have proved effective in this case.”). In addition, the Court emphasizes
that it needs to avoid calendar congestion and, more importantly, to ensure an orderly and
expeditious disposition of all cases before it. Thus, although “[t]he Court affords [Plaintiff]
special consideration as a pro se litigant[,] . . . a plaintiff’s pro se status should not explain or
excuse disregard for or abandonment of his own lawsuit.” Hardimon, 2014 WL 2039116, at *2;
see also Shim Cho v. Tomczyk, No. 05-CV-5570, 2007 WL 3254294, at *2 (E.D.N.Y. Nov. 2,
2007) (“The demand that plaintiffs provide contact information is no esoteric rule of civil
procedure, but rather the obvious minimal requirement for pursuing a lawsuit.” (citation
omitted)).
Accordingly, this Action is dismissed without prejudice for failure to prosecute. See
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”); Salem v. City of New York, No. 16-CV-7562, 2017 WL 6021646,
at *2 (S.D.N.Y. Dec. 4, 2017) (“A delay of eight months to one year in prosecuting a case falls
comfortably within the time frames found sufficient in successful Rule 41(b) motions to
dismiss.” (internal quotation marks omitted)); 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);
Robinson v. United States, No. 03-CV-1001, 2005 WL 2234051, at *2 (S.D.N.Y. Sept. 8, 2005)
(“Only the [p]laintiff can be responsible for notifying the court and the [d]efendant of his
updated address, and [the p]laintiff’s failure to do so has made it impossible to provide him any
notice.”).
The Clerk of Court is respectfully directed to mail a copy of this Order to Plaintiffs
address, and to close this case.
SO ORDERED.
Dated: November 7, 2023 iy
White Plains, New York
———XENNETH KARAS
United States District Judge