Cano v. Kharkover
- Rochon
- 1:22-cv-10557
- U.S. District Court · Southern District of New York
- 5
In Cano v. City of New York, Judge Rochon dismissed the case without prejudice after Cano failed to prosecute and respond to court orders.
Christopher Hiram Cano’s § 1983 action was dismissed without prejudice, affecting his claims against the City of New York and the other defendants. The defendants’ pending motion to dismiss was terminated, and the case was closed.
What happened
Christopher Hiram Cano brought a civil-rights lawsuit under 42 U.S.C. § 1983 while representing himself. The defendants moved to dismiss, but Cano did not respond, provide an updated address, or communicate with the court for more than nine months.
The court gave Cano several opportunities and warned that continued inaction could lead to dismissal. The court found that the delay significantly stalled the case, prejudiced the defendants, and made lesser sanctions inappropriate.
Judge Jennifer L. Rochon dismissed Cano’s case without prejudice for failure to prosecute under Federal Rule of Civil Procedure 41(b). The court also terminated the pending motion and closed the case.
The detailed version
- Cano v. Kharkover · No. 1:22-cv-10557
- Rochon
- July 9, 2025
Background
Christopher Hiram Cano filed this action under 42 U.S.C. § 1983 while proceeding without a lawyer. The defendants filed a motion to dismiss Cano’s complaint and supplemental complaint on October 18, 2024. Cano did not file an opposition by the original deadline.
Court mailings to Cano’s address of record were returned as undeliverable. The court extended his deadline to May 19, 2025, and later gave him another courtesy extension until July 3, 2025. The court warned that failing to provide an updated address, respond to the motion, or otherwise contact the court could result in dismissal. The defendants informed the court that Cano appeared to have been placed in New York City Department of Correction custody in connection with criminal proceedings in Queens Criminal Court and said their counsel attempted to mail documents to his apparent new address.
Reasoning
The court dismissed under Rule 41(b), which permits dismissal for failure to prosecute or failure to follow court orders. The court considered the Second Circuit’s five factors: the length and effect of the delay, whether the plaintiff was warned, likely prejudice to the defendants, the court’s need to manage its docket while preserving the plaintiff’s opportunity to be heard, and whether a lesser sanction would work.
The court found that Cano’s failure to prosecute had significantly delayed the case. The defendants’ motion had been pending without a response for nearly nine months, and discovery had been stayed during that period. The court also found that Cano had been warned about the consequences of failing to update his address or respond, and it presumed prejudice because he had been inaccessible for months. Because Cano had received multiple opportunities to act, the court concluded that dismissal without prejudice was the appropriate lesser sanction.
Disposition
Judge Jennifer L. Rochon ordered that the case be dismissed without prejudice for failure to prosecute. The Clerk of Court was directed to terminate the pending motion at Docket 63 and close the case.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.