Abreu v. NYC DOC

Background

Kevin Abreu sued the New York City Department of Corrections, New York City Health and Hospitals, Captain Mohamad, Officer Marshall, and two unidentified defendants. He alleged that they violated his constitutional rights while he was incarcerated on Rikers Island. The court later dismissed the Department of Corrections from the case and added the City of New York as a defendant.

The City of New York and New York City Health and Hospitals filed a motion to dismiss the complaint. They served Abreu at his address of incarceration. Abreu did not oppose the motion or otherwise respond.

Failure to prosecute

The court issued orders on April 9, 2020, and June 22, 2020, directing Abreu to respond. The June order set a July 13 deadline and warned that failure to respond could lead to dismissal under Rule 41(b), a rule allowing a court to dismiss an action when a plaintiff does not pursue it.

The court applied five factors used by the U.S. Court of Appeals for the Second Circuit: the length of the plaintiff’s delay, notice that continued delay could lead to dismissal, possible prejudice to the defendants, the balance between court efficiency and the plaintiff’s opportunity to be heard, and whether lesser sanctions would work.

The court found that Abreu had failed to respond to the motion or communicate with the court for about ten months. It found that he had received clear notice of the possible consequences, that prejudice to the defendants could be presumed, and that no lesser sanction would remedy his failure to prosecute. Although the court noted that Abreu’s absence was not disruptive and that there was no compelling evidence of severe court congestion, it concluded that four of the five factors favored dismissal.

Ruling

Judge Edgardo Ramos dismissed Abreu’s action for failure to prosecute. The court directed the clerk to terminate any outstanding motions and close the case. The opinion does not state whether the dismissal was with or without prejudice.