Hussey v. Salgado

Background

Yessuh Suhyes Hussey, proceeding without a lawyer, brought claims under 42 U.S.C. § 1983, a federal law that allows claims for constitutional-rights violations, arising from his August 3, 2021 arrest at 25 West 14th Street in Manhattan. The defendants were Mario Salgado, Michael Gabriele, Thomas Ward, and the City of New York. Hussey filed an initial complaint on January 19, 2023, and a second complaint concerning the same events and defendants on February 16, 2023. The second complaint was filed in the Eastern District of New York and later transferred; Magistrate Judge Netburn treated it as an amended complaint.

Failure to Prosecute

When Hussey filed the second complaint, he was incarcerated at Rikers Island. On April 7, 2023, Chief Judge Swain ordered him to provide his current mailing address or consent to electronic service within 30 days, warning that failure to comply could result in dismissal without prejudice. After the case was reassigned, Judge Netburn ordered Hussey on October 12, 2023, to provide his mailing address by November 13, 2023, and again warned that the case would be dismissed without prejudice if he did not comply. The Clerk mailed that order to Hussey, but the mail was returned.

Hussey did not respond to either order and took no action in the case after filing the second complaint. On November 22, 2023, Judge Netburn issued a report and recommendation—a recommendation by a magistrate judge to the district judge—advising dismissal without prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute.

Court’s Analysis

The court considered the five factors used for a Rule 41(b) dismissal: the length of the plaintiff’s failure to comply; whether the plaintiff was warned about dismissal; likely prejudice to the defendants from further delay; the balance between managing the court’s schedule and giving the plaintiff an opportunity to be heard; and whether a less severe sanction could work.

The court found that all five factors favored dismissal. Hussey had not provided his address, had taken no action for well over a year, and had received two warnings that failure to comply could lead to dismissal. The court also found that further delay could prejudice the defendants, that there was no evidence Hussey intended to continue the case, and that lesser sanctions would be ineffective because he had not responded to prior court orders.

Disposition

Judge Gardephe adopted Judge Netburn’s report and recommendation in full. Hussey’s claims against Mario Salgado, Michael Gabriele, Thomas Ward, and the City of New York were dismissed without prejudice for failure to prosecute. The Clerk of Court was directed to close the case. The opinion did not decide whether Hussey’s constitutional-rights claims had merit.