McCray v. State of New York

Background

Cerious D. McCray, who was incarcerated at Dutchess County Jail and proceeding without a lawyer, filed this action under 42 U.S.C. § 1983, a federal civil-rights statute, on February 28, 2017. He paid the filing fee because the opinion states that he was barred from filing civil actions without paying the fee under 28 U.S.C. § 1915(g), unless he faced an imminent risk of serious physical injury.

The court dismissed McCray’s original complaint on March 13, 2018, but allowed him to file an amended complaint. The court later dismissed his amended complaint because it did not comply with the court’s amendment order or federal pleading requirements. Because McCray was representing himself, the court gave him one final opportunity to file a pleading stating a viable claim and warned that no further opportunities would be provided. The court extended his deadline to February 28, 2020.

Failure to Prosecute

McCray did not file the required second amended complaint and did not otherwise communicate with the court. The court found that he had failed to comply with several court orders and had taken no steps to advance the action for several months.

Under Federal Rule of Civil Procedure 41(b), a district judge may dismiss a complaint for failure to prosecute, meaning the plaintiff has not actively pursued the case. The court considered the duration of McCray’s failures, the notice he had received that additional delay could lead to dismissal, the effect of further delay on the case, the need for orderly case management, and whether lesser sanctions would be effective.

Ruling

Judge Nelson S. Roman dismissed the action because of McCray’s failure to prosecute. The opinion’s conclusion states that the dismissal was under “Fed R. Civ. P. 41(6),” although the discussion of the governing rule identifies Rule 41(b). The order does not state that the dismissal was with or without prejudice. The clerk was directed to terminate the action, serve McCray with the order at the address listed on the docket, and file proof of service.