UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MICHAEL MURRAY, Plaintiff, y. No, 18-CV-802 (KMK)

CITY OF PORT JERVIS and MICHAEL ORDER DECKER, Defendants. KENNETH M. KARAS, United States District Judge: Michael Murray (“Plaintiff”) brings this Action asserting, among other things, violations of his rights under the Fourth, Sixth, and Fourteenth Amendments. (See Compl. (Dkt. No, 2).) On April 9, 2018, Chief Judge McMahon, to whom this case was originally assigned, granted Plaintiffs request to proceed in forma pauperis. (Dkt. No. 6.) On April 20, 2018, Judge McMahon issue an Order dismissing the Complaint pursuant to

(e)(2)(B)Gi), but out of “an abundance of caution” granted Plaintiff 30 days to amend. (Dkt. No. 7.) On May 17, 2018, Plaintiff filed an Amended Complaint. (Am. Compl. (Dkt. No. 9).) On June 8, 2018, this Action was reassigned to this Court. (See Dkt. (entry for June 8, 2018).) On October 26, 2018, Defendants filed a Motion To Dismiss and accompanying papers. (Dkt. Nos. 25-27.) On April 18, 2019, the Court received a document titled, “Plaintiff's Affidavit/A ffirmation in Opposition to Defendant’s Motion To Dismiss,” dated April 11, 2019, which appears to address a different case. (Dkt. No. 29.) The same day, the Court received a letter, dated April 15, 2019, indicating that Plaintiff was no longer incarcerated. (Dkt. No. 30.) On August 26, 2019, the Court docketed a letter from Plaintiff, dated August 11, 2019, requesting an extension to amend his pleadings, (Dkt. No. 32.) Accordingly, on August 29, 2019, the Court issued an Order terminating the pending motion and directing Plaintiff to file a

second amended complaint by October 4, 2019, (Dkt. No. 31.) To date, Plaintiff has not filed

such an amended complaint, and other than filing a Consent to Electronic Service on September 16, 2019, (Dkt. No. 33), Plaintiff has not otherwise communicated with the Court. On December 31, 2019, Defendants filed a letter seeking an Order of Dismissal in light of Plaintiff's failure to amend and comply with the Court’s directive. (Dkt. No. 34.) On January 7, 2020, the Court issued an Order to Show Cause directing Plaintiff to explain, within 30 days, why the case should not be dismissed for failure to prosecute. (Dkt. No. 35.) More than 30 days have now passed since that Order, and Plaintiff has not responded or otherwise communicated

with the Court. Accordingly, the Court now dismisses the case for failure to prosecute. 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.,

(2d Cir. 2001) (citing Link vy, Wabash R.R. Co.,

(1962)). While dismissal under Rule 41(b) is subject to the sound discretion of the district courts,

see US. ex rel. Drake v. Norden Sys., Inc.,

(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,

(internal quotation mark omitted) (quoting Theiimann v.

Rutland Hosp., Inc.,

(2d Cir, 1972)). However, it has also stated that the authority to invoke dismissal for failure to prosecute is “vital to the efficient administration of

judicial affairs and provides meaningful access for other prospective litigants to overcrowded courts.” Lyell Theatre Corp. v. Loews Corp.,

(2d Cir. 1982). 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,

, at *1 (S.D.N.Y. May 16, 2014) (alterations in original) (quoting LeSane,

). No single factor is dispositive. See LeSane,

; Hardimon,

, at *1. The Court concludes that these factors weigh in favor of dismissal of this Action. When the Court initially granted Plaintiff’s request for leave to amend, he was advised that he must do

so by October 4, 2019. (See Dkt. No. 33.) When Plaintiff still had not done so more than three months after that deadline elapsed, the Court issued an Order To Show Cause explaining that a failure to respond within 30 days would result in dismissal for failure to prosecute. (Dkt. No. 35.) Nonetheless, Plaintiff still has not responded. Moreover, Plaintiff has not communicated with the Court regarding this Action since September 6, 2019, when Plaintiff filed his Consent to Electronic Service. (See Dkt. No. 33.) Accordingly, Plaintiff’s case is dismissed with prejudice for failure to prosecute. See, e.g., Mena v. City of New York, No. 15-CV-3707,

, 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”); Capogrosso v. Troyetsky, No. 14-CV-381,

, 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); Savatxath v. City of Binghamton, No. 12-CV-1492,

, at *1 (N.D.N.Y. Sept. 9, 2013) (dismissing case for failure to prosecute after the plaintiff “neglected to comply with an order .. . requiring him to notify the court... as to why th[e] action should not be dismissed for failure to prosecute”), Smalls v. Bank of N.Y, Nos. 05-CV-8474, 07-CV-8546,

, at *4 (S.D.N. Y, Apr. 29, 2008) (dismissing case for failure to prosecute where the court received no communication from the plaintiffs for nearly two months). The Clerk of Court is directed to mail a copy of this Order to Plaintiff. SO ORDERED, Dated: February A} , 2020 White Plains, New York fk ff ~ KENNESERM-KARAS nited States District Judge