West v. Goord , 423 F. App'x 66 ( 2011 )

08-4433-pr
West v. Goord
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 27th day of May, two thousand eleven.
PRESENT: JOHN M. WALKER, JR.,
BARRINGTON D. PARKER,
DENNY CHIN,
Circuit Judges.
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JAMES M. WEST,
Plaintiff-Appellant,
-v.- 08-4433-pr
GLENN S. GOORD, et al.,
Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT: SARAH P. KENNEY (Douglas F. Broder,
on the brief), K&L Gates LLP, New
York, NY.
FOR DEFENDANTS-APPELLEES: MARTIN A. HOTVET, Assistant
Solicitor General (Eric T.
Schneiderman, Attorney General,
Andrea Oser, Deputy Solicitor
General, and Barbara D. Underwood,
Solicitor General, on the brief),
Office of the Attorney General for
the State of New York, Albany, NY.
Appeal from a judgment of the United States District
Court for the Western District of New York (Arcara, Ch. J.)
entered August 15, 2008, dismissing the action "for plaintiff's
failure to prosecute."
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment is VACATED and the case is
REMANDED.
We assume the parties' familiarity with the facts,
procedural history, and issues on appeal.
Defendant-appellant James West, an inmate at Five
Points Correctional Facility in Romulus, New York, commenced this
action below, pro se, against certain New York State correctional
officials pursuant to, inter alia, 42 U.S.C. §§ 1983, 1985, and
1986, and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.
West filed a 58-page complaint. On October 31, 2005, the
district court (Elfvin, J.) sua sponte dismissed the complaint,
granting West leave to file an amended complaint, not to exceed
fifteen pages in length, within thirty days. West filed an
amended complaint, within the page limit, on January 9, 2006.
Defendants moved to dismiss the amended complaint or
for a more definite statement. On September 26, 2007, the
district court granted the motion to the extent it sought a more
definite statement. West filed a second amended complaint, also
limited to fifteen pages, on November 20, 2007.
On November 29, 2007, defendants moved to strike the
second amended complaint pursuant to Fed. R. Civ. P. 12(f) and to
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dismiss it pursuant to Fed. R. Civ. P. 12(e). On December 6,
2007, the district court (Scott, Mag. J.) ordered West to respond
to the motion by January 4, 2008. The order warned West that the
complaint "may" be dismissed for failure to prosecute if he
failed to respond to the motion. The order also, however,
attached a notice, pursuant to Irby v. New York City Transit
Authority, 262 F.3d 412 (2d Cir. 2001), providing detailed
instructions on how to oppose a motion for summary judgment (the
"Irby Notice"). The Irby Notice instructed West to submit
affidavits and other admissible evidence.
West sought an extension of time until April 14, 2008
to oppose defendants' motion. West referred to the Irby Notice
and stated that he was "perplexed or puzzled" by the court's
scheduling order. The district court (Scott, Mag. J.) granted
the extension, setting February 22, 2008 as the deadline for West
to oppose defendants' motion to dismiss; it again attached an
Irby Notice to its order.
West did not meet the February 22, 2008 deadline. On
April 24, 2008, the magistrate judge issued a report and
recommendation recommending that the case be dismissed for lack
of prosecution (the "R&R"). The R&R concluded: "The plaintiff
has clearly ceased to take any steps to prosecute this case."
Within the ten-day period for objecting to the R&R, West
requested an extension of time, without specifying whether he was
seeking an extension to object to the R&R or to oppose
defendants' motion. The district court treated the request as
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one for an extension of time to object to the R&R, and granted it
until June 5, 2008.
On June 4, 2008, West filed a memorandum of law and
affidavit (with exhibits) opposing defendants' motion to dismiss.
As directed in the Irby Notices, West responded to defendants'
motion to dismiss as if it were a motion for summary judgment.
On August 14, 2008, the district court issued an order
adopting the R&R. The district court concluded:
Upon a de novo review of the [R&R], and after
reviewing the submissions of the parties, the
Court adopts the proposed findings of the
[R&R]. Plaintiff's objections address only
the merits of his case and do not provide any
acceptable justification for failing to file
a response to defendants' motion to dismiss
the second amended complaint.
This appeal followed, and West was assigned counsel for
the appeal.
Dismissal of a pro se complaint for failure to
prosecute is a "harsh remedy" that should be utilized only in
"extreme situations." LeSane v. Hall's Sec. Analyst, Inc., 239
F.3d 206, 209 (2d Cir. 2001) (internal quotation marks omitted);
accord Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)
("[D]eference is due to the district court's decision to dismiss
a pro se litigant's complaint only when the circumstances are
sufficiently extreme.").
We review a district court's dismissal of an action for
failure to prosecute for abuse of discretion. Lewis v. Rawson,
564 F.3d 569, 575 (2d Cir. 2009). In conducting this review, we
focus on "whether: (1) the plaintiff's failure to prosecute
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caused a delay of significant duration; (2) plaintiff was given
notice that further delay would result in dismissal; (3)
[defendants were] 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." Ruzsa v. Rubenstein & Sendy Att'ys at Law,
520 F.3d 176, 177 (2d Cir. 2008) (per curiam) (internal quotation
marks omitted). No one factor is dispositive, and we must review
the dismissal in light of the record as a whole. United States
ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir.
2004). While a district court is not required to discuss each of
the factors explicitly, "a decision to dismiss stands a better
chance on appeal if the appellate court has the benefit of the
district court's reasoning." See Martens v. Thomann, 273 F.3d
159, 180 (2d Cir. 2001) (internal quotation marks omitted).
We conclude that here the district court abused its
discretion. The district court did not discuss all five factors.
We consider them now.
First, the delay was approximately three-and-a-half
months. The deadline was February 22, 2008, and West did not
submit his opposition until June 4, 2008. This was, however, the
first time that West had missed a deadline, and some of the delay
was undoubtedly due to confusion caused by the district court's
twice sending West an Irby Notice directing him to respond as if
defendants had moved for summary judgment when they had moved
only to dismiss or for a more definite statement. Under the
circumstances, the delay was not of "significant duration."
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Second, although the magistrate judge's December 6,
2007 order did give notice that "the complaint may be dismissed"
if West failed to respond to the motion, the notice was brief and
equivocal and, again, was combined with the confusing Irby
Notice.
Third, defendants have not alleged that they were
prejudiced by the delay.
Fourth, the district court did not balance the need to
alleviate court calendar congestion against West's right to an
opportunity to be heard, and nothing in the record suggests that
such a balancing would have weighed in favor of dismissal.
Finally, the district court did not discuss the
efficacy of lesser sanctions. The record shows that West had
been actively pursuing his claims, and that he eventually
opposed, albeit belatedly, defendants' motion to dismiss. The
magistrate judge's finding, adopted by the district court, that
"plaintiff has clearly ceased to take any steps to prosecute this
case" was wrong.
Weighing the five factors and all the circumstances of
the case, we conclude that West's delay in opposing defendants'
motion to dismiss was not so "extreme" as to warrant the "harsh
remedy" of dismissal for failure to prosecute. On remand, the
district court may want to consider defendants' motion to dismiss
or strike the second amended complaint on the merits, based on
the parties' submissions.
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Accordingly, the judgment of the district court
dismissing the second amended complaint for failure to prosecute
is VACATED, and the case is REMANDED to the district court for
further proceedings.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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