Simon v. City of New York Department of Corrections
- John Cronan
- 1:18-cv-12063
- U.S. District Court · Southern District of New York
- 4
In Simon v. City of New York Department of Corrections, Judge Cronan dismissed claims against two unidentified defendants without prejudice for failure to prosecute.
Milton Simon’s remaining claims against “C.O. John Doe (Clinc-Post)” and “Doctor Devour of Medical” were dismissed without prejudice. The order also closed the case and denied fee-free appeal status.
What happened
In Simon v. City of New York Department of Corrections, Milton Simon sued after two alleged incidents at the Otis Bantum Correctional Center. The court had already granted summary judgment to four other defendants and dismissed Simon’s state-law claims, leaving claims against a clinic correction officer identified as “C.O. John Doe (Clinc-Post)” and “Doctor Devour of Medical.”
The court had ordered Simon to provide more information to identify the clinic officer and to amend his complaint to name Doctor Devour, whom the New York City Law Department identified as P.A. Yves Duverne. Simon did neither, and neither remaining defendant was served. The court also had warned Simon that the clinic officer could be dismissed if he did not provide more identifying information.
Judge Cronan dismissed the case without prejudice as to the two remaining defendants because Simon failed to follow court orders and did not move the case forward for an extended period. The court directed the Clerk to close the case and enter judgment, and denied fee-free appeal status because it certified that an appeal would not be taken in good faith.
The detailed version
- Simon v. City of New York Department of Corrections · No. 1:18-cv-12063
- John Cronan
- Aug. 29, 2022
Background
Milton Simon, proceeding without a lawyer, sued after two alleged incidents at the Otis Bantum Correctional Center on Rikers Island. His claims included claims under 42 U.S.C. § 1983, a federal civil-rights statute, and state-law claims.
On August 23, 2022, the court adopted a report and recommendation and granted summary judgment to Deputy Warden C. Johnson, Physician’s Assistant Gerard Auguste, Correction Officer M. Mills, and Correction Officer A. Alvarez on Simon’s § 1983 claims. The court also dismissed Simon’s state-law claims. Those four defendants were terminated from the case.
The remaining defendants were identified in the amended complaint as “C.O. John Doe (Clinc-Post)” and “Doctor Devour of Medical.” A prior court order directed the New York City Law Department to identify them and directed Simon to file an amended complaint using their true names. The Law Department later identified Doctor Devour as P.A. Yves Duverne, but Simon did not amend his complaint to name Duverne. The Law Department could not identify the clinic correction officer from the information Simon provided.
The court notified Simon that the clinic officer could be dismissed without prejudice if Simon did not provide additional identifying information. Simon did not provide that information. Neither the clinic officer nor P.A. Yves Duverne had been served.
Rule 41(b) analysis
Federal Rule of Civil Procedure 41(b) permits a court to dismiss an action when a plaintiff fails to prosecute the case or comply with court orders. The court considered five factors: the length of the failure to comply, whether the plaintiff was warned that dismissal could result, likely prejudice to the defendants, the balance between managing the court’s docket and preserving the plaintiff’s opportunity to be heard, and whether a less severe sanction would be appropriate.
The court found that the factors favored dismissal. Simon had failed to provide information about the clinic officer for nearly a year and a half and had failed to amend the complaint to name Doctor Devour for nearly two years. He had been warned that the clinic officer could be dismissed. The court said prejudice could be presumed from the lengthy and unjustified delay, particularly because the alleged conduct occurred approximately six years earlier. It also concluded that Simon’s extended failure to follow orders suggested that he had abandoned the litigation and that a lesser sanction would not be appropriate.
Disposition
The court dismissed the case without prejudice with respect to “C.O. John Doe (Clinc-Post)” and “Doctor Devour of Medical.” The Clerk of Court was directed to close the case, enter judgment, and mail the order to Simon. The court certified under 28 U.S.C. § 1915(a)(3) that an appeal would not be taken in good faith and denied Simon fee-free appeal status. The court expressly made no finding about whether Simon’s claims against the clinic officer and P.A. Yves Duverne were time-barred.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.