The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CALVIN WALKER,
Plaintiff,
Case # 23-CV-6598-FPG
v.
DECISION AND ORDER
DOCCS,
Defendant.
INTRODUCTION
Pro se Plaintiff Calvin Walker brings this civil rights action against Defendant DOCCS.
ECF No. 1. On March 12, 2025, the Court issued an Order to Show Cause, which directed Plaintiff
to, by March 26, 2025, show cause in writing why this case should not be dismissed for failure to
prosecute. ECF No. 14. To date, Plaintiff has not responded to that Order. For the reasons below,
Plaintiff’s action is dismissed for failure to prosecute.
BACKGROUND
This action was commenced in October 2023, when pro se Plaintiff Calvin Walker filed a
complaint seeking relief under 42 U.S.C. § 1983. ECF No. 1. On November 27, 2023, the Court
granted Plaintiff’s application to proceed in forma pauperis and screened his complaint under 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(a). ECF No. 6. The Court found that Plaintiff’s complaint
plausibly alleged a claim under the Americans with Disabilities Act (“ADA”) and the
Rehabilitation Act (“RA”) and allowed that claim to proceed to service upon DOCCS. Id. at 6–13.
Additionally, the Court dismissed Plaintiff’s Eighth Amendment claim but granted leave to amend.
Id. at 6.
Plaintiff timely filed an amended complaint, ECF No. 7, which the Court screened under
28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a). ECF No. 9. The Court then dismissed without leave to
amend the Eighth Amendment claims. Id. at 2. Because the amended complaint did not include
the allegations supporting the ADA/RA claim but did name DOCCS as a defendant, the Court
reinstated the original complaint and directed service upon DOCCS. Id. Plaintiff did not respond
to that Order. On August 14, 2024, Defendant DOCCS moved to dismiss this action for failure to
state a claim. ECF No. 11. Plaintiff did not oppose the motion. Plaintiff’s last contact with the
Court was a letter dated January 30, 2024, notifying the Court of his new address. ECF No. 8.
In this Court’s previous Orders, ECF Nos. 6, 9, the Court ordered that Plaintiff notify the
Court in writing of any address changes and cautioned that the action may be dismissed if the
Plaintiff failed to do so. ECF No. 6 at 13; ECF No. 9 at 7. While Plaintiff did not formally notify
the Court, the Court learned that Plaintiff’s address had changed since he last updated the Court.
Currently, Plaintiff’s address is listed as Riverview Correctional Facility in the Court’s electronic
filing system, which is the address Plaintiff provided in his last contact with the Court. See ECF
No. 8. However, New York’s inmate-lookup website indicates that Plaintiff was released from
Riverview Correctional Facility on October 24, 2024.
Because Plaintiff failed to keep the Court informed of his address change, as required by
the Local Rules and this Court’s Orders, Plaintiff was ordered to show cause, in writing, why this
case should not be dismissed for failure to inform the Court of his address change by March 26,
2025. ECF No. 14 at 3. In the Order, Plaintiff was warned that if he failed to file a written response
by March 26, the Court may treat his noncompliance as a failure to prosecute and may dismiss this
action with prejudice pursuant to Rule 41(b). Id. The Court mailed a copy of its Order to Show
Cause, ECF No. 14, to Plaintiff’s last known address, but received no response from Plaintiff.
DISCUSSION
Federal Rule of Civil Procedure 41(b) authorizes the district court to dismiss an action
when a plaintiff fails to prosecute or to comply with the Federal Rules of Civil Procedure or a court
order. Lucas v. Miles, 84 F.3d 532, 534–35 (2d Cir. 1996). The district court’s discretion to dismiss
a case under Rule 41(b) for failure to prosecute is not limitless, and the record must be reviewed
as a whole. Link v. Wabash R. Co., 370 U.S. 626, 630 (1962); see also LeSane v. Hall’s Sec.
Analyst, Inc., 239 F.3d 206, 209–10 (2d Cir. 2001).
Although not specifically defined in Rule 41(b), the Second Circuit Court of Appeals has
stated that a 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 Theatre Corp. v. Loews
Corp., 682 F.2d 37, 42 (2d Cir. 1982). Also, in tandem, this Court’s Local Rule of Civil Procedure
41(b), states that a judge may issue an order dismissing a civil case if it is pending for more than
six months and noncompliant with the judge’s directions, or if no action has been taken by the
parties for more than six months. Loc. R. Civ. P. 41(b).
When considering a Rule 41(b) dismissal, the Court analyzes the following five factors:
(1) the duration of the plaintiff’s failure to comply with the court order, (2) whether
plaintiff was on notice that failure to comply would result in dismissal, (3) whether
the defendants are likely to be prejudiced by further delay in the proceedings, (4) a
balancing of the court’s interest in managing its docket with the plaintiff’s interest
in receiving a fair chance to be heard, and (5) whether the judge has adequately
considered a sanction less drastic than dismissal.
Lucas, 84 F.3d at 535. No single factor is dispositive, and the Court must consider the record as a
whole. Vail v. City of New York, No. 18-CV-9169, 2021 WL 2018838, at *1 (S.D.N.Y. May 20,
2021).
Where a plaintiff is proceeding pro se, his or her claims should be dismissed for failure to
prosecute “only when the circumstances are sufficiently extreme.” LeSane, 239 F.3d at 209.
However, pro se litigants have an obligation to comply with a court’s orders, and when they fail
to do so, “they, like all litigants, must suffer the consequences of their actions.” Hibbert v. Apfel,
No. 99 Civ. 4246, 2000 WL 977683, at *3 (S.D.N.Y. Jul. 17, 2000).
I. Failure to Prosecute
After considering the above factors, the Court concludes that dismissal is appropriate under
Rule 41(b) because each of the relevant factors favors dismissal.
a. Delay
Plaintiff’s last contact with the Court was on January 30, 2024. See ECF No. 8. Under the
most generous interpretation of the facts, Plaintiff has been in noncompliance with Court’s order
to notify it of any address changes since October 24, 2024. This delay of five months is sufficient
to warrant dismissal. See Peters-Turnbull v. Board of Educ. of City of New York, No. 96-CV-4914,
1999 WL 959375, at *3, (S.D.N.Y. Oct. 20, 1999) (holding that a delay between five and ten
months was “comfortably within the time frames found sufficient in successful Rule 41(b) motions
to dismiss.”).
b. Notice
The Court warned Plaintiff multiple times that he needed to maintain current contact
information with the Court and cautioned that Plaintiff’s claims could be dismissed if Plaintiff
failed to do so. See ECF Nos. 6, 9, 14. On March 12, 2025, the Court gave Plaintiff a specific, final
warning that his claims may be dismissed for failure to prosecute if he did not respond to the Order
to Show Cause. ECF No. 14. Therefore, Plaintiff had sufficient notice. See Lucas, 84 F.3d at 535.
c. Prejudice
In this case, Defendant would be prejudiced by being forced to attempt to disprove the
claims of a plaintiff who has been nonresponsive and is unlikely to participate in discovery and
further litigation. See Simmonds v. City of New York, No. 21-CV-06495, 2023 WL 6879615, at *2
(E.D.N.Y. Oct. 18, 2023).
d. Docket Balance
“Tt is not the function of this Court to chase dilatory plaintiffs while other litigants in this
district seek access to the courts.” Hibbert, 2000 WL 977683, at *3. As such, the Court has an
interest in removing this case from its docket, instead of keeping it open for the benefit of a plaintiff
who has shown no interest in participating in the case for more than a year. See Simmonds, 2023
WL 6879615, at *2.
e. Sanctions
Monetary sanctions are usually not appropriate for a pro se and/or in forma pauperis
plaintiff. Henderson v. Levy, No. 15-CV-802, 2019 WL 1410867, at *4 (W.D.N.Y. Mar. 1, 2019).
Given that Plaintiff is pro se and proceeding in forma pauperis in this case, the Court finds that
monetary sanctions would not be appropriate. In addition, based on the analysis above, the Court
declines to provide a sanction less drastic than dismissal at this time.
CONCLUSION
For the foregoing reasons, Plaintiff's Complaint is DISMISSED WITH PREJUDICE for
failure to prosecute pursuant to Fed. R. Civ. P. 41(b). Defendant’s Motion to Dismiss, ECF No.
11, is DENIED AS MOOT. The Clerk of Court is directed to enter judgment and close this case.
IT IS SO ORDERED.
DATED: Rochester, New York
March 27, 2025
United States District Judge
Western District of New York