Fernandez v. Lowe

Background

Pablo Fernandez filed the action on September 8, 2018. The opinion identifies him as proceeding without a lawyer and without paying filing fees. The defendants are Correction Officer Leon Lowe, Sergeant Todd Paroline, Lieutenant John McMorrow, Captain Linda Carrington-Allen, Quandera T. Quick, and Dr. Felix We.

The court's October 1, 2018 Order of Service told Fernandez that he had to notify the court in writing if his address changed and that the case could be dismissed if he failed to do so. The court also mailed him instructions for people without attorneys and a change-of-address form, which contained the same warning.

Address Updates and Returned Mail

In June 2019, Fernandez told the court that his conviction had been overturned and that he had been transported to the Anna M. Kross Center at the Rikers Island complex while awaiting retrial. In August 2019, he wrote that he had been released and provided an address on Manhattan Avenue in New York. The clerk updated the docket with that address.

The court then mailed Fernandez an August 9, 2019 order at the docketed address, but the mail was returned as undeliverable. On August 27, 2019, the court ordered Fernandez to update his address in writing by September 26 and warned that failing to do so could result in dismissal under Federal Rule of Civil Procedure 41(b) for failure to prosecute or comply with court orders. That order was also returned as undeliverable.

On October 11, 2019, the court issued another order directing Fernandez to update his address by November 11 and stating that the case would be dismissed if he did not comply. That order was returned as undeliverable as well. The opinion states that Fernandez had not updated his address in writing as of the date of the order.

Ruling

The court concluded that Fernandez had abandoned the case. After considering the factors identified in the court's cited precedent, it dismissed the case with prejudice under Rule 41(b) for failure to prosecute or comply with court orders. A dismissal with prejudice bars refiling the dismissed case.

The clerk was directed to terminate as moot the defendants' pending motion to dismiss, close the case, and mail a copy of the order to Fernandez at the address on the docket. The court also certified that an appeal would not be taken in good faith and denied fee-free status for purposes of an appeal.