Cannon v. New York State Department of Corrections and Community Supervision

Background

Joseph Sherod Cannon sued the New York State Department of Corrections and Community Supervision and other defendants. The court had determined that Cannon was not barred by 28 U.S.C. § 1915(g) from proceeding without paying filing fees while he was a prisoner. That order was returned as undeliverable. The court later confirmed from public records that Cannon had been released from the custody of the New York State Department of Corrections and Community Supervision, but he had not notified the court that his mailing address had changed.

On May 9, 2023, the court ordered Cannon to provide his current mailing address within 30 days or to provide an email address if he consented to electronic service. The court warned that failure to comply could lead to dismissal under Rule 41(b) of the Federal Rules of Civil Procedure. The court received no response, and it appeared that Cannon had not received the May order because it was returned as undeliverable. The court stated that it had not heard from Cannon since February 2023 and that the defendants had not yet been served with the summons and complaint.

Court’s analysis

Rule 41(b) permits a district court to dismiss a complaint when a plaintiff fails to follow a court order, treating that failure as a failure to prosecute the case. The court considered the relevant factors: whether the failure caused significant delay, whether Cannon had been warned that continued delay could lead to dismissal, whether the delay could prejudice the defendants, whether the court had balanced case-management needs against Cannon’s opportunity to pursue his case, and whether a less severe sanction would be effective.

The court found that Cannon had been warned about dismissal, had not responded, and had not participated in the case. Although there was no specific evidence that the delay had prejudiced the defendants, the court noted that prejudice may be presumed from unreasonable delay. The court concluded that there was no clear purpose or benefit to keeping the case open without any participating parties.

Ruling

Judge Laura Taylor Swain dismissed Cannon’s complaint without prejudice to his refiling his claims under Rule 41(b). The court also certified that an appeal would not be taken in good faith and denied Cannon permission to proceed without paying filing fees for an appeal. The Clerk of Court was directed to enter judgment. The opinion also stated that, if appropriate, Cannon could seek to restore the matter to the calendar under Rule 60(b), but any such submission would have to include an address for service or consent to electronic service.