WILFRED V. ARNOLD, Plaintiff, v. COUNTY OF WESTCHESTER, et al., Defendants No. 16-CV-9552 United States District Court, S.D. New York Signed December 06, 2018 Counsel Wilfred V. Arnold, Clinton, NC, pro se. Fay Angela Jones, Westchester County Attorney's Office, White Plains, NY, for Defendants County of Westchester, Deputy Commissioner Justin D. Pruyne, Correctional Officer Val, Correction Officer Viau. James Christopher Freeman, Kent Hazzard, LLP, White Plains, NY, for Defendants Correct Care Solutions, Doctor Raul Ulloa, Joon Park, Nurse Michael Kelly, Nurse Veronica O'Meally-Tully, Supervisory Staff Peter Gavin, Nurse Helen Bishop, Nurse Natasha Gordon. William Harold Bave, Wilson, Bave, Conboy, Cozza and Couzens, White Plains, NY, for Defendant Westchester Medical Center. Fay Angela Jones, Westchester County Attorney's Office, William Harold Bave, Wilson, Bave, Conboy, Cozza and Couzens, White Plains, NY, for Defendant Westchester County Department of Correction. Karas, Kenneth M., United States District Judge ORDER OF DISMISSAL *1 This Action has been dismissed once before. On December 11, 2017, after the Court had issued an Order to Show Cause requiring Plaintiff to respond to all outstanding discovery demands or face dismissal of his case, (Dkt. Nos. 64, 73), the Court issued a third Order requiring Plaintiff to show cause, by January 5, 2018, why this case should not be dismissed for failure to prosecute, (Dkt. No. 78). Plaintiff failed to respond to the Order, and failed to comply with Defendants’ discovery demands. (Dkt. Nos. 77, 79, 82). Accordingly, the Court dismissed the case without prejudice for failure to prosecute on January 17, 2018. (Dkt. No. 86.) This Action has also been revived once before. On May 10, 2018, Plaintiff filed a letter informing the Court of his current location and requesting an update as to the status of his case. (Dkt. No. 87.) On July 2, 2018, Plaintiff filed another letter indicating that he wished to re-open the case. (Dkt. No. 89.) Defendants objected to Plaintiff's request. (Dkt. No. 90.) The Court first denied Plaintiff's application, stating on July 3, 2018: The Court afforded Plaintiff multiple opportunities to comply with his discovery obligations and warned him of the consequences of non-cooperation. Moreover, Plaintiff offers no explanation for his failure to comply with his discovery obligations or the reason he has waited several months to file this application. This dismissal is without prejudice to Plaintiff re-filing this application with an explanation of his conduct in this case. (Dkt. No. 91.) On July 18, 2018, Plaintiff filed a responsive letter providing an explanation, (Dkt. No. 92), and Defendants responded on August 6, 2018, (Dkt. No. 94). On August 8, 2018, the Court granted Plaintiff's request, vacated the order of dismissal, and re-opened the case. (Dkt. No. 96.) Importantly, the Court also ordered that discovery be completed within 60 days, and warned that “failure to comply with discovery requests could result in the Court dismissing Plaintiff's case.” (Id.) On October 23 and 24, 2018, Defendants filed letters alerting the Court that Plaintiff “is again in violation of this court's order to comply with [Defendants’] discovery demands,” and requesting dismissal for failure to prosecute. (Dkt. No. 106; see also Dkt. Nos. 108, 109.) The Court ordered Plaintiff to respond and again warned that he faced possible dismissal of the case. (Dkt. Nos. 110, 111, 112.) Plaintiff responded on November 15, 2018, stating: [D]ue to his current incarceration and his inability to gather the dispersed discovery documents of his own accord and his failed efforts to secure an attorney to accomplish essential measures such as obtaining expert discovery for service upon the defendants, the plaintiff is unfortunately and unwillingly prevented from complying with the aforementioned Court Orders.... [W]ithout counsel, Plaintiff is unable to honor this Court's recent Order to complete discovery .... (Dkt. No. 113.) Defendants responded by noting that Plaintiff has admitted that he will not be complying with discovery demands. (See Dkt. Nos. 115, 117, 118.) *2 This Court has the authority to dismiss a case for failure to prosecute. See Fed. R. Civ. P. 41(b). Rule 41(b) of the Federal Rules of Civil Procedure provides that a case may be involuntarily dismissed if a plaintiff “fails to prosecute or to comply with these rules or a court order.” Although Rule 41(b) expressly addresses a situation in which a defendant moves to dismiss for failure to prosecute, it has long been recognized that a district court has the inherent authority to dismiss for failure to prosecute sua sponte. See LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)). While dismissal under Rule 41(b) is subject to the sound discretion of the district courts, see U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 250–51 (2d Cir. 2004), the Second Circuit has stated that a Rule 41(b) dismissal is “a harsh remedy to be utilized only in extreme situations,” LeSane, 239 F.3d at 209 (internal quotation marks and citation omitted). The Second Circuit has further cautioned, “pro se plaintiffs should be granted special leniency regarding procedural matters.” Id. (citation omitted). “However, even pro se litigants must prosecute claims diligently, and dismissal with prejudice is warranted where the [C]ourt gives warning.” Jacobs v. County of Westchester, No. 99-CV-4976, 2008 WL 199469, at *3 (S.D.N.Y. Jan. 22, 2008). Before exercising its discretionary authority to dismiss for failure to prosecute, a district court should consider the following factors: [1] the duration of the plaintiff's failures, [2] whether plaintiff had received notice that further delays would result in dismissal, [3] whether the defendant is likely to be prejudiced by further delay, [4] whether the district judge has take[n] care to strik[e] the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard ... and [5] whether the judge has adequately assessed the efficacy of lesser sanctions. Hardimon v. Westchester County, No. 13-CV-1249, 2014 WL 2039116, at *1 (S.D.N.Y. May 16, 2014) (alterations in original) (quoting LeSane, 239 F.3d at 209). No single factor is dispositive. See LeSane, 239 F.3d at 210; Hardimon, 2014 WL 2039116, at *1. The Court concludes that these factors clearly weigh in favor of dismissal of this Action. This Action has been dismissed once before for failure to prosecute and to comply with discovery obligations. (Dkt. No. 86.) The Court re-opened the Action, expressly directed that discovery be completed by date certain, and again warned Plaintiff of the consequences of not completing discovery and adhering to Court orders. (Dkt. No. 96.) Again, Plaintiff failed to comply with his discovery obligations, despite communicating with the Court on other issues. (See Dkt. Nos. 97, 99 (Plaintiff's letters alerting the Court to a change in address); Dkt. Nos. 102–104 (Plaintiff's letters seeking appointment of counsel.) Now, Plaintiff admits that he will not be complying with his discovery obligations. (Dkt. No. 113.) Plaintiff argues that he is “prevented from complying with” his discovery obligations because of his “inability to gather the dispersed discovery documents of his own accord.” (Dkt. No. 113.) The Court notes that where a discovery violation is “substantially justified,” a sanction is inappropriate. Fed. R. Civ. P. 37(c)(1). “Substantial justification may be demonstrated where there is justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure request, or if there exists a genuine dispute concerning compliance.” Ritchie Risk-Linked Strategies Trading (Ireland), Ltd. v. Coventry First LLC, 280 F.R.D. 147, 159 (S.D.N.Y. 2012) (internal quotation marks and citation omitted). “The party that fails to comply with [discovery obligations] bears the burden of proving both that its non-compliance was substantially justified.” Id. (citation omitted). Here, Plaintiff's conclusory excuse fails to carry the burden of demonstrating substantial justification. Although the Court recognizes that pro se plaintiffs face special challenges, particularly when litigating from prison, ““[t]he pro se status of a non-compliant litigant does not relieve [him] of any discovery obligations.” Handwerker v. AT&T Corp., 211 F.R.D. 203, 208 (S.D.N.Y. 2002) (citing Minotti v. Lensink, 895 F.2d 100, 103 (2d Cir. 1990)); see also Mena v. City of New York, No. 15-CV-3707, 2017 WL 6398728, at *2 (S.D.N.Y. Dec. 14, 2017) (noting that “a pro se plaintiff is not exempt from complying with court orders and must diligently prosecute his case”). Plaintiff here does not state that the discovery burden in his case is unique. Nor has Plaintiff made any attempt to mitigate his non-compliance, for example by turning over some information and explaining to Defendants and the Court why he cannot obtain and turn over other information. See Tse v. UBS Fin. Servs., Inc., 568 F. Supp. 2d 274, 322 (S.D.N.Y. 2008) (noting that “the parties would have avoided this entire dispute had [the] plaintiff at least partially complied with her discovery obligation in the first instance”); Ritchie Risk-Linked Strategies Trading, 280 F.R.D. at 159–60 (holding that the plaintiffs’ failure to “provide an exact or complete calculation of their damages” was not excused because they “could have simply provided the total amount spent on fees, which would have been available from the attorneys’ bills”); Martin v. Met. Museum of Art, 158 F.R.D. 289, 290 (S.D.N.Y. 1994) (noting that “[i]f, in fact, [the documents subject to discovery] could not be located, [the pro se plaintiff was under an obligation to report that fact”). *3 Accordingly, this Action is dismissed without prejudice for failure to prosecute. See Savatxath v. City of Binghamton, No. 12-CV-1492, 2013 WL 4805767, at *1 (N.D.N.Y. Sept. 9, 2013) (dismissing case for failure to prosecute after the plaintiff “neglected to comply with an order ... requiring him to notify the court ... as to why th[e] action should not be dismissed for failure to prosecute”); Webb v. Goord, No. 05-CV-15, 2008 WL 4238699, at *2 (N.D.N.Y. Sept. 5, 2008) (listing cases where courts “have dismissed lawsuits brought by pro se plaintiffs for failure to provide a current address” (italics omitted)); Smalls v. Bank of N.Y., Nos. 05-CV-8474, 07-CV-8546, 2008 WL 1883998, at *4 (S.D.N.Y. Apr. 29, 2008) (dismissing case for failure to prosecute where the plaintiffs failed to respond to correspondence from defense counsel and the court received no communication from the plaintiffs for nearly two months). The Clerk of Court is directed to mail a copy of this Order to Plaintiff. SO ORDERED.