Fernandez v. Doe

Background

Jesus Fernandez filed this action on December 3, 2020, and later filed an amended complaint. The opinion states that he was representing himself and had been allowed to proceed without paying filing fees. At the time, he listed Bare Hill Correctional Facility as his address.

The court’s January 28, 2021 order, later service orders, and accompanying instructions told Fernandez that he had to promptly notify the court in writing if his address changed. Those orders warned that the case could be dismissed if he failed to do so.

Events Leading to Dismissal

Maria Badami moved to dismiss the amended complaint on September 19, 2022. Fernandez opposed that motion and again listed Bare Hill as his address. On April 17, 2023, the court granted in part and denied in part Badami’s motion to dismiss. The court separately scheduled an initial telephone conference for May 31, 2023.

The mailing of the scheduling order was returned after the court was informed that Fernandez was no longer at Bare Hill and had been released from Orleans Correctional Facility. On May 4, 2023, the court issued another order warning that it could dismiss the case under Rule 41(b) of the Federal Rules of Civil Procedure if Fernandez failed to provide his current address. The order also reminded him to attend the May 31 telephone conference.

That order was returned as undeliverable. Fernandez did not attend the May 31 conference or update his address. Defense counsel told the court that counsel had mailed Fernandez a letter using an address obtained from the Department of Corrections and Community Supervision and later spoke with Fernandez by telephone; according to the opinion, counsel reminded Fernandez in both communications to update his address and attend the conference.

On June 1, 2023, the court scheduled another conference for July 5 and warned that it would consider the action abandoned and dismiss it under Rule 41(b) if Fernandez did not update his address in writing and appear at the conference without an excuse or explanation. Fernandez did not appear at the July 5 conference and still had not updated his address.

Ruling

Judge Vincent L. Briccetti dismissed the action for failure to comply with court orders and failure to prosecute under Rule 41(b). The opinion does not state that the dismissal was with or without prejudice. The clerk was instructed to close the case.

The court also certified under 28 U.S.C. § 1915(a)(3) that any appeal from the order would not be taken in good faith and denied fee-free status for purposes of an appeal. The court directed that a copy of the order be mailed to Fernandez.

Classification

This is a procedural order because the court dismissed the action for failure to follow court orders and failure to prosecute without deciding the underlying claims.