McCray v. Lee

Background

Lionel McCray, proceeding without a lawyer, brought a civil-rights action under 42 U.S.C. § 1983 against Superintendent William Lee, Watch Commander Lt. Plimley, and Sergeant Kutz. He alleged that the defendants violated his constitutional rights while he was incarcerated at Green Haven Correctional Facility.

Discovery began on June 1, 2022. After McCray was released to parole supervision, he failed to appear at a telephone status conference on October 12, 2022. The court later extended the discovery deadline so that defendants could depose him. McCray did not appear for a deposition scheduled for November 29, 2022, even though defense counsel and a court reporter waited for more than an hour.

The court ordered that McCray’s deposition take place by December 15, 2022, and stated that defendants could seek sanctions if he failed to appear again. Defendants sent notice of a rescheduled deposition for December 13, 2022. McCray did not appear for that deposition, did not appear at additional court conferences, and did not contact the court in response to those events. The opinion also states that parole authorities could not locate him and that defendants’ counsel reported in July 2023 that his whereabouts were still unknown.

Defendants moved to dismiss under Federal Rules of Civil Procedure 37 and 41. In a September 25, 2023 opinion and order, the court denied that motion because McCray had not been specifically warned that failure to comply could result in dismissal of the case. The court nevertheless ordered McCray to reschedule his deposition or show cause—give a reason—within 30 days why the case should not be dismissed for failure to prosecute. The Clerk mailed that order to McCray, but the court received no response.

Legal standard

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 rules or orders. A district court also has inherent authority to dismiss for failure to prosecute without a motion from the defendants. The court described dismissal under Rule 41(b) as a harsh remedy reserved for extreme situations, while recognizing that self-represented plaintiffs receive special consideration on procedural matters.

Before dismissing, the court considered five factors: the length of the plaintiff’s failures; whether the plaintiff was warned that further delay could lead to dismissal; likely prejudice to the defendants; the balance between court efficiency and the plaintiff’s opportunity to be heard; and whether a lesser sanction would be effective.

Court’s analysis

Judge Karas concluded that the factors strongly favored dismissal. McCray had been completely absent from the case for approximately one year. He failed to comply with the November 29, 2022 order requiring him to sit for a deposition and with the September 25, 2023 order requiring him either to reschedule the deposition or explain why the case should not be dismissed.

The court found that McCray had received sufficient warning. The September 25 order stated twice that further noncompliance could result in dismissal and that the case could be dismissed with prejudice without further notice if McCray did not show good cause within 30 days.

The court also found that no sanction short of dismissal with prejudice would address the continuing prejudice to defendants from keeping the case open. The court emphasized that the action had been pending since March 7, 2016, that its resolution had been delayed for nearly a year, and that it needed to manage its calendar and resolve cases orderly and promptly. Although the court gave McCray special consideration because he represented himself, it concluded that this status did not excuse abandoning the lawsuit or disregarding court orders.

Disposition

The court dismissed the action with prejudice for failure to prosecute. It directed the Clerk of Court to mail McCray a copy of the order and close the case. The court also certified under 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore denied McCray permission to appeal without paying filing fees.