Randolph v. Griffin

UNITED STATES DISTRICT COURT

W ESTERN DISTRICT OF NEW YORK

LEONARD RANDOLPH,

Plaintiff,

v. DECISION AND ORDER

12-CV-745S

THOMAS R. GRIFFIN, THOMAS E. HANNAH,

MICHAEL V. ROBYCK, JAMIE M. ROBINSON,

and JAMES GILBERT,

Defendants.

I. INTRODUCTION

In this action, Plaintiff Leonard Randolph alleged that various defendants, all of

whom are employees of the New York Department of Corrections and Community

Supervision (“DOCCS”), violated his constitutional rights by using excessive force against

him, failing to intervene to protect him against the use of excessive force, denying him

adequate medical care, and prohibiting him from freely exercising his religion. He brought

five First and Eighth Amendment claims under 42 U.S.C. § 1983. Randolph has not,

however, continued to participate in this case. Consequently, for the reasons stated

below, this Court finds that this action must be dismissed for failure to prosecute.

II. BACKGROUND

On January 22, 2019, this Court granted Defendants summary judgment on each

of Randolph’s claims. See Randolph v. Griffin, 12-CV-745S, 2019 WL 283872 (W.D.N.Y.

Jan. 22, 2019). This Court dismissed Randolph’s First Amendment claim for failure to

exhaust administrative remedies. Id. at *8. As to Randolph’s Eighth Amendment claims,

this Court found that issues of material fact precluded a determination as to whether

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Randolph properly exhausted his available administrative remedies, but in any event,

Defendants were entitled to summary judgment because there was insufficient evidence

from which a reasonable trier of fact could find any Eighth Amendment violations. Id. at

*8, *9-15. Randolph appealed.

On June 2, 2020, the United States Court of Appeals for the Second Circuit

determined that Randolph sufficiently raised genuine disputes of material fact that

Defendants used excessive force and failed to intervene to protect him from excessive

force such that a reasonable jury could find an Eighth Amendment violation. See

Randolph v. Griffin, 816 F. App’x 520, 523-25 (2d Cir. 2020). It therefore remanded the

case for further proceedings. Id. at 525. The Circuit’s Mandate was entered on July 2,

2020, thereby restoring jurisdiction in this Court. (Docket No. 139.)

After issuance of the Second Circuit’s decision but before its Mandate was entered,

Defendants moved for a hearing on the issue of administrative exhaustion. (Docket No.

138.) Once the Second Circuit issued its Mandate, this Court set a briefing schedule on

Defendants’ motion on July 2, 2020, but the Order was not sent to Randolph, who had

reverted to pro se status,1 nor did Defendants serve their motion on Randolph. (Docket

No. 140.) This Court therefore ascertained Plaintiff’s address,2 ordered a new briefing

schedule, and directed the Clerk of Court to send copies of the Order and motion papers

1 Randolph was previously represented by pro bono counsel.

2 Upon inquiry from the court, Randolph’s appellate counsel provided his parole officer’s contact

information. Randolph’s parole officer then advised the court that Randolph resided at the Project Renewal,

Fort Washington Men’s Shelter, 651 W. 168th Street, New York, N.Y. 10032, the address to which all

subsequent correspondence has been sent. None of the correspondence has been returned as

undeliverable, and Randolph has never updated his address. It is therefore presumed by rule that Randolph

is living at his current address and has received the papers sent there. See Rule 5.1 (d) of the Local Rules

of Civil Procedure for the United States District Court for the Western District of New York.

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to Randolph. (Docket No. 141.) This Court also directed Randolph to respond to

Defendants’ motion by August 31, 2020, or risk dismissal of the action for failure to

prosecute. Id. Randolph did not respond as directed.

On September 15, 2020, this Court issued an Order sua sponte extending

Randolph’s time to respond to Defendants’ motion until October 14, 2020. (Docket No.

142.) Therein, this Court noted its awareness that Randolph’s housing situation may be

unstable, and in an effort to exhaust all avenues of reaching him, directed the Clerk of

Court to also send copies of the Order to Randolph’s previous attorneys (trial and

appellate counsel), in case Randolph contacted them. Id. This Court also again warned

Randolph that his failure to respond to Defendants’ motion could result in his case being

dismissed for lack of prosecution. Id. Randolph again failed to respond.

On October 19, 2020, this Court issued another Order sua sponte extending

Randolph’s time to respond to Defendants’ motion until November 30, 2020. (Docket No.

143.) The Order was sent to Randolph and his previous attorneys, and this Court again

warned Randolph that his failure to respond could result in his case being dismissed for

lack of prosecution. Randolph failed to respond for a third time.

On December 14, 2020, this Court issued another Order sua sponte extending

Randolph’s time to respond to Defendants’ motion until January 29, 2021. (Docket No.

145.) Like the Orders before it, this Order was sent to Randolph and his previous

attorneys. Id. This Court set out the history of Randolph’s failure to respond to the court’s

previous orders and explicitly advised Randolph that his case would be dismissed for

failure to prosecute if he did not respond as directed. Id. This Court also advised

Randolph that this would be his final opportunity to respond to avoid dismissal. Id.

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Randolph again failed to respond.

III. DISCUSSION

A. Dismissal for Failure to Prosecute

Despite numerous opportunities to do so, Randolph has not responded to

Defendants’ motion, nor has he otherwise participated in this action since its return from

the Second Circuit. This case therefore warrants dismissal for failure to prosecute, under

Rule 41 (b) of the Federal Rules of Civil Procedure, which provides that

[i]f the plaintiff fails to prosecute or to comply with these rules

or a court order, a defendant may move to dismiss the action

or any claim against it. Unless the dismissal order states

otherwise, a dismissal under this subdivision (b) and any

dismissal not under this rule—except one for lack of

jurisdiction, improper venue, or failure to join a party under

Rule 19—operates as an adjudication on the merits.

Fed. R. Civ. P. 41 (b).

Where the defendant has not moved under Rule 41 (b), a court may nonetheless

dismiss a case sua sponte. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S. Ct.

1386, 8 L. Ed. 2d 734 (1982); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d

Cir. 1982). In Link, the Supreme Court noted that “[t]he authority of a court to dismiss

sua sponte for lack of prosecution has generally been considered an ‘inherent power,’

governed not by rule or statute but by the control necessarily vested in courts to manage

their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link,

370 U.S. at 630-31.

Rule 41 (b) does not define what constitutes failure to prosecute. But the Second

Circuit has stated that failure to prosecute “can evidence itself either in an action lying

dormant with no significant activity to move it or in a pattern of dilatory tactics.” Lyell

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Theatre Corp., 682 F.2d at 42. Dismissal pursuant to Rule 41 (b) falls within the court’s

discretion. See id. at 42-43 (“the scope of review of an order of dismissal is confined

solely to whether the trial court has exercised its inherent power to manage its affairs

within the permissible range of its discretion”). It is, however, “a harsh remedy to be

utilized only in extreme situations.” Harding v. Fed. Rsrv. Bank, 707 F.2d 46, 50 (2d Cir.

1983) (quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972) (per

curiam)); see also Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir. 1980)

(discussing the sanction of dismissal for failure to prosecute as “pungent, rarely used,

and conclusive”). This is particularly true in cases involving pro se litigants, where

dismissal for failure to prosecute should be granted only “when the circumstances are

sufficiently extreme.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (citing Nita v. Conn.

Dep’t of Env’t Prot., 16 F.3d 482, 487 (2d Cir. 1994)).

The following factors, none of which is dispositive, must be considered in

determining whether dismissal for failure to prosecute is warranted: (1) the duration of the

plaintiff’s failures, (2) whether the plaintiff received notice that further delays would result

in dismissal, (3) whether the defendant is likely to be prejudiced by further delay, (4)

whether an appropriate balance has been struck between alleviating the court’s calendar

congestion and protecting the litigants’ due process rights, and (5) whether lesser

sanctions would be appropriate. See United States ex rel. Drake v. Norden Sys., Inc.,

375 F.3d 248, 255 (2d Cir. 2004); Nita, 16 F.3d at 485; Feurtado v. City of New York, 225

F.R.D. 474, 477 (S.D.N.Y. 2004) (quoting Jackson v. City of New York, 22 F.3d 71, 74

(2d Cir. 1994)). While a district court is not required to expressly discuss these factors

on the record, “a decision to dismiss stands a better chance on appeal if the appellate

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court has the benefit of the district court's reasoning.” Lucas, 84 F.3d at 535. Finally, in

examining the above factors, no single factor is to be considered dispositive. See United

States ex rel. Drake, 375 F.3d at 254.

In the present case, these factors weigh in favor of dismissal. Specifically, (1)

Randolph has caused a delay of significant duration in this litigation, as the proceedings

have been halted for approximately seven months as a result of his inaction, see Ruzsa

v. Rubenstein & Sendy Att’ys at Law, 520 F.3d 176, 177 (2d Cir. 2008) (upholding

dismissal where pro se party caused seven-month delay); (2) this Court directed

Randolph to respond to Defendants’ motion four times and each time warned him that his

failure to respond could result in dismissal of this case; (3) Defendants are inherently

prejudiced by further delay of this action; (4) by affording Randolph ample time to

prosecute his claims, this Court carefully balanced the need to alleviate court calendar

congestion against Randolph's right to pursue his claims; and (5) no lesser sanction would

be appropriate as Randolph's repeated failure to comply with this Court’s multiple

dismissal warnings demonstrates that lesser sanctions would be ineffective, see Ruzsa,

520 F.3d at 178 (holding that “it is . . . unclear that a ‘lesser sanction’ would have proved

effective” in light of plaintiff's failure to respond to district court's notice).

Consequently, having assessed the relevant factors and made every reasonable

effort to contact Randolph, including attempting to reach him through his previous

attorneys, this Court finds that Randolph has had ample opportunity to pursue his claims

but has elected not to do so. Dismissal for failure to prosecute is therefore warranted.

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B. Dismissal Under the Local Rules

This district’s local rules3 require litigants to prosecute their cases or face

dismissal. As relevant here, Local Rule 41 (b) provides for the dismissal of a civil case

that has been pending for more than six months and is not in compliance with the

directions of the presiding judge, or if no action has been taken by the parties for six or

more months. Local Rule 5.2 (d) provides for dismissal of a pro se action if the pro se

litigant fails to keep the court apprised of his or her current address for service of papers.

Here, Randolph has taken no action in this case for seven months and has failed

to comply with this Court’s directions. Moreover, to the extent Randolph is residing at an

address other than the one provided on the docket, he has failed to apprise the court of

his current address, which is also a basis for dismissal. Dismissal for failure to prosecute

is therefore independently warranted under the local rules.

IV. CONCLUSION

For the foregoing reasons, Randolph’s case is dismissed without prejudice to

reopening in the six months following the entry date of this decision. If Randolph fails to

move for reopening within the six-month period, the dismissal is automatically converted

without further order to a dismissal with prejudice.

V. ORDERS

IT HEREBY IS ORDERED, that Randolph’s case is DISMISSED for failure to

prosecute, pursuant to Rule 41 (b) of the Federal Rules of Civil Procedure and this

district’s local rules.

3 Referring to the Local Rules of Civil Procedure for the United States District Court for the Western District

of New York (“the Local Rules”).

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FURTHER, that this dismissal is WITHOUT PREJUDICE to reopening in the six

months following the entry date of this decision.

FURTHER, that if Randolph fails to move for reopening within the six-month

period, this dismissal is automatically converted without further order to a dismissal WITH

PREJUDICE.

FURTHER, that the Clerk of Court is directed to send a copy of this decision to

Randolph at his last known address as reflected on the docket.

FURTHER, that the Clerk of Court is directed to also send copies of this decision

to Randolph’s previous attorneys as follows:

Angelo S. Gambino, Esq.

Brown Chiari, LLP

2470 Walden Avenue

Buffalo, NY 14225

Lauren M. Brody, Esq.

Shapiro Arato Bach LLP

500 Fifth Avenue, 40th Floor

New York, NY 10110

FURTHER, that it is requested that previous counsel, if in contact with Randolph,

inform him of this decision.

FURTHER, that the Clerk of Court is directed to CLOSE this case.

SO ORDERED.

Dated: March 2, 2021

Buffalo, New York

s/William M. Skretny

WILLIAM M. SKRETNY

United States District Judge

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