Lewis v. Rawson

05-3805-pr
Lewis v. Rawson

UNITED STATES COURT OF APPEALS

F OR THE S ECOND C IRCUIT

August Term, 2005

(Reinstated: May 16, 2008 Decided: April 28, 2009)

Docket No. 05-3805-pr

T EDDY L EWIS,

Plaintiff-Appellant,
—v.—

B OYCE R AWSON, D ANIEL S TYCZYNSKI, Corrections Officer, Great Meadow Correctional
Facility, F RED Y OUNG, Corrections Officer, Great Meadow Correctional Facility, M ARK
F REY, Corrections Officer, J OHN C OSTELLO, Corrections Officer, H. G RAHAM,
Lieutenant, Great Meadow Correctional Facility, J. G ILLINGHAM, Sergeant, Great
Meadow Correctional Facility, H AROLD A USTIN, Sergeant, Great Meadow Correctional
Facility, C. M URRAY, Correction Officer Great Meadow Correctional Facility,

Defendant-Appellees,

L IEUTENANT B ENSON, T HOMAS A. C OUGHLIN III, Commissioner, N.Y.S. Dept. of
Correctional Services, B RIAN F. M ALONE, Inspector General, N.Y.S. Dept. of
Correctional Services, A RTHUR A. L EONARDO, Warden, Great Meadow Correctional
Facility, R OBERT J UCKETT, Deputy Warden of Security, Great Meadow Correctional
Facility, W. H OFFMAN, Correction Officer Great Meadow Correction Facility,

Defendants.
Before:

C ABRANES and R AGGI, Circuit Judges, and B ERMAN, District Judge.*

___________________

Plaintiff, who on the first day of trial refused to testify in support of his § 1983 claims

because he was being detained during trial at the same prison facility where his rights had

allegedly been violated, appeals the decision of the United States District Court for the

Northern District of New York (Lawrence E. Kahn, Judge) to dismiss the case with

prejudice.

A FFIRMED.

Judge Berman dissents in a separate opinion.

T EDDY L EWIS, Plaintiff-Appellant, pro se.

V ICTOR P ALADINO, Assistant Solicitor General (Barbara D. Underwood,
Solicitor General; Andrea Oser, Deputy Solicitor General, and Peter H. Shiff,
Senior Counsel, on the brief), for Andrew M. Cuomo, Attorney General of the
State of New York, Albany, New York, for Defendant-Appellees.

R EENA R AGGI, Circuit Judge:

New York State prisoner Teddy Lewis sued the named defendants, officials and

employees of the New York State Department of Correctional Services, pursuant to 42

*
The Honorable Richard M. Berman of the United States District Court for the
Southern District of New York, sitting by designation.

2
U.S.C. § 1983 for alleged violations of his constitutional rights while being held at Great

Meadow Correctional Facility (“Great Meadow”). Proceeding pro se, Lewis now appeals

from a judgment of the United States District Court for the Northern District of New York

(Lawrence E. Kahn, Judge), dismissing his suit with prejudice based on his refusal to testify

at trial while incarcerated at Great Meadow. Because we conclude that the district court

acted within its discretion in ordering dismissal, we affirm.

I. Background

A. Pre-Trial Proceedings

Teddy Lewis is a New York State inmate incarcerated through at least 2062 –

effectively the rest of his life – for multiple murders. In 1991, Lewis initiated this § 1983

action against defendants for alleged racial harassment and physical assaults sustained during

his transfer from Attica Correctional Facility to Great Meadow in 1990.2

The litigation of Lewis’s § 1983 claims was beset by repeated and lengthy pre-trial

delays spanning more than a decade. For example, although the case was designated ready

for trial on May 17, 1994, the docket reflects no activity until August 5, 1996, when the

matter was reassigned to Judge Kahn. Thereafter, despite Lewis’s letters to the court

2
Lewis’s transfer followed a riot at Attica. See generally Wright v. Coughlin, 132
F.3d 133, 134 (2d Cir. 1998) (describing Attica riot of May 26, 1990). According to motion
papers filed in this action, Lewis was disciplined for his involvement in this incident and, as
a result, was confined to the Special Housing Unit (“SHU”) at Great Meadow for two years.
See Memorandum of Law in Support of Defendants’ Motion for Partial Summary Judgment
at 1, Lewis v. Benson, No. 91 Civ. 621 (Docket No. 149) (N.D.N.Y. Feb. 11, 2003).

3
objecting to continued delay,3 no steps were taken to set his case down for trial until

December 7, 1998, when the court advised the parties that trial would commence on March

1, 1999. It did not.

Instead, by letter dated January 20, 1999, defense counsel sought leave to file a motion

for summary judgment. Leave was granted, and the district court awarded summary

judgment to defendants on March 28, 2000. Lewis appealed, and this court vacated the

judgment by unpublished summary order dated January 8, 2001, because of the absence of

factual findings or legal analysis supporting the award. See Lewis v. Benson, 23 F. App’x

23, 23 (2d Cir. 2001).

Following remand, on February 20, 2003, defendants moved for partial summary

judgment on behalf of the supervisory officials not alleged to have been personally involved

in the 1990 assault. In a report issued on September 12, 2003, Magistrate Judge Randolph

F. Treece recommended that the motion be granted, and, over Lewis’s objections, Judge

Kahn adopted the recommendation.4

3
On August 29, 1996, Lewis wrote to the court objecting to the lengthy delay in his
case, requesting that it arrange for a settlement conference with the defendants, and asserting
that the delay had prejudiced him “because most, if not all, of my witnesses have been
released from prison and I have no way of making contact with them.” On April 8, 1998,
Lewis – having apparently received no response to his prior letter – wrote a letter to Chief
Judge McAvoy of the Northern District of New York requesting that the Chief Judge
intercede to arrange either settlement discussions or a trial date.
4
Lewis appealed from this ruling, and we summarily dismissed for lack of a final
judgment. See Lewis v. Benson, No. 03-0302-pr (2d Cir. June 10, 2004). When Lewis again

4
 As to plaintiff’s claims against the remaining defendants, in March 2005, the district

court assigned Jeremy P. Chen as pro bono counsel for Lewis and set the case down for trial

on June 21, 2005, at the federal courthouse in Albany.

B. The Trial and Dismissal of Lewis’s Action

Before trial, Lewis was incarcerated at the New York State Correctional Facility in

Auburn, New York (“Auburn”), approximately 150 miles from the federal courthouse in

Albany. See generally Boyce Motor Lines v. United States, 342 U.S. 337, 344 (1952)

(recognizing court’s authority to “take judicial notice of geography”). Lewis asserts that on

the morning of June 21, 2005, he was transported from Auburn to Albany and placed in a

holding cell at the federal courthouse. There, at approximately 10:00 a.m., Chen advised

Lewis that during the course of the federal trial he would be held at Great Meadow, the

facility where the alleged assaults had occurred and where certain of the defendants were still

employed. Great Meadow, located in Comstock, New York, is approximately 70 miles from

Albany.

The morning’s court proceedings commenced on the record at 10:30 a.m. in Judge

challenged this ruling after the final order of dismissal, we summarily affirmed the award of
summary judgment as to the supervisory defendants. See Lewis v. Rawson, 180 F. App’x
239, 240-41 (2d Cir. 2006). However, because the record on appeal did not include the
transcript of the trial proceedings, we dismissed Lewis’s challenge to the dismissal of his
remaining claims without prejudice to reinstatement if, within 30 days, Lewis secured or
demonstrated reasonable efforts to secure the trial transcript. Id. at 241. After Lewis filed
a copy of the transcript with this court, we reinstated his appeal, which we now address.

5
Kahn’s chambers.5 The trial transcript reveals that Judge Kahn, plaintiff’s counsel Chen, and

defense counsel – Stephen Schwartz of the New York Attorney General’s Office – there

discussed the fact that Lewis would be shackled during trial, an action apparently deemed

necessary in light of the violent nature of both Lewis’s crimes of conviction and his

disciplinary record in prison. Indeed, it was Lewis’s own counsel who proposed that his

client’s feet and non-dominant hand be shackled during trial, leaving his dominant hand free

for taking and passing notes.

With this resolved, Judge Kahn inquired of counsel: “Is there anything else before we

bring up the jury and the [plaintiff]?” Trial Tr. at 4. The attorneys proceeded to discuss

various factual stipulations and the number of witnesses they would call, with Chen

indicating that Lewis would be the only witness in support of the plaintiff’s case. Chen

requested – and the court agreed – that Lewis would sit in on jury selection. At no time,

however, did Chen raise the issue of Lewis’s incarceration during trial at Great Meadow, nor

was the subject broached by defense counsel or Judge Khan. Indeed, neither the trial

transcript nor the clerk’s detailed notes indicate that a discussion of this subject took place

prior to jury selection.

Jury selection commenced at 10:45 a.m. and concluded at 11:37 a.m., whereupon the

5
The location of these initial proceedings is indicated in notes compiled by the
court’s clerk. See Trial Notes of Scott A. Snyder, Lewis v. Benson, No. 99 Civ. 612
(N.D.N.Y. June 21, 2005) (Docket No. 176) (“Clerk’s Trial Notes”) (“10:30 A.M. Court
meets minus the jury in chambers.”).

6
jury was sworn and given preliminary instructions by Judge Khan. The court then declared

a “five-minute break” before opening statements. Id. at 12. The transcript of the colloquy

that ensued when the break concluded at 11:48 a.m. suggests that it was during that interval

that the issue of plaintiff’s incarceration during trial at Great Meadow first arose:6

THE COURT: Correct me if I’m wrong, Mr. Chen, but Mr. Lewis is
concerned about testifying particularly against the defendants who are now
assigned to the Great Meadow Correctional Facility?

MR. CHEN: That’s correct, your Honor.

THE COURT: And as I understand it, he states that he won’t so testify
unless he’s transferred to another facility. I told him that I personally have no
power over transferring. As I understand it, I don’t think that’s within my
power to do that. And what’s your position on that Mr. Schwartz?

MR. SCHWARTZ: I don’t understand, Judge, because, yes, Mr. Lewis
is currently housed at Auburn Correctional Facility. Correct?

MR. CHEN: That is correct.

6
Following the reinstatement of this appeal, we ordered the parties to provide
supplemental briefs addressing “(1) at what point Lewis learned that he would be housed at
[Great] Meadow[]; and (2) how quickly he brought his safety concerns to the District Court’s
attention.” In his supplemental submission to this court, Lewis asserts that Chen informed
the district court “before jury selection that the plaintiff was in fear of his life from the
defendants . . . and would not allow himself to be transferred back to Great Meadow without
a court order of protection.” Appellant’s Supp. Br. at 1 (emphasis added). Even if true, this
would indicate only that the district court was made aware that Lewis had concerns about
being housed at Great Meadow, but not that he was refusing to testify without an
adjournment or transfer, a distinction with a significant difference. In fact, the record does
not support Lewis’s assertion as to the time of disclosure. The colloquy reproduced in the
text indicates that it was during the brief recess between the jury being sworn and the
scheduled start of openings that counsel first alerted the district court to Lewis’s concern
about being confined at Great Meadow during trial.

7
 MR. SCHWARTZ: That’s another facility. So he’s concerned about –

MR. CHEN: He will be housed at Great Meadow temporarily.

THE COURT: During this trial.

MR. CHEN: During the course of this trial. And since this is where the
incident took place, and he’s also concerned about the fact that other
defendants are currently employed there, that that concerns him.

MR. SCHWARTZ: This is the first I heard of the fact that he was going
to be housed there. I don’t know that I have any authority – I know I don’t
have any authority to determine where an inmate is being housed during the
course of the trial. I can discuss the matter with the officers and –

THE COURT: Do you want to do that over the next few minutes?

MR. SCHWARTZ: Yes, Judge.

THE COURT: And then let me know your position. And then we’ll act
accordingly.

MR. SCHWARTZ: Yes, Judge.

THE COURT: Okay. Go ahead.

Id. at 13-14.

Following this break, Judge Khan noted on the record what counsel had

reported to the court.

THE COURT: On the record. As I understand it, and correct me if I’m
wrong, the Attorney General, Mr. Schwartz, is not opposed to trying to arrange
a new facility, but he can’t do that at the moment, he would have to look into
this. And as he stated, the plaintiff has no right to select the facility he’s going
to stay at during the two or three-day trial.

Mr. Lewis, and correct me again, if I’m wrong, has stated that he just won’t
testify because of this situation – but he doesn’t want to dismiss the case

8
 himself; he’s not consenting to dropping the case.

If there’s no other solution, I would dismiss the case and certainly preserve his
right to appeal. There’s a presumption that any facility he’s staying at, he’s
going to be treated properly and lawfully.

Id. at 14-15.

The court then inquired as to whether any defendants were still assigned to Great

Meadow and, upon learning that they were, noted that another option available to it was “just

to adjourn this trial for about a few weeks or a month,” return Lewis to Auburn, and try the

case at the federal courthouse in Syracuse. Id. at 15. After consulting with Lewis, Chen

reported to the court that because his client “fears for his life” at Great Meadow, Lewis’s

preferred choice would be to have the trial adjourned until it could be conducted in Syracuse.

Id. at 16.

Defense counsel objected, reiterating that inmates have no right to determine where

they are housed and noting that adjournment would inconvenience his clients. He offered

yet another option: during trial, Lewis could be placed in the SHU at Great Meadow where

surveillance cameras operated around the clock. If this accommodation was insufficient to

persuade Lewis to proceed with trial, defense counsel urged dismissal.

Judge Kahn allowed Chen to confer with Lewis to discuss this option, but Lewis did

not consent to SHU placement, noting that some of the alleged abuse occurred at that site.

Chen again urged adjournment and transfer of the trial to Syracuse.

Having heard from the parties, the district court dismissed the case with prejudice.

9
This appeal followed.

II. Discussion

A. Standard of Review and Applicability of the Drake Factors

Because Lewis’s testimony was to be the only direct evidence introduced in support

of his allegation that defendants assaulted him during his transfer to Great Meadow, the

district court viewed his refusal to testify as a failure to prosecute.7 Rule 41(b) of the Federal

Rules of Civil Procedure states that “[i]f the plaintiff fails to prosecute or to comply with

these rules or a court order, a defendant may move to dismiss the action or any claim against

it.”

We review a dismissal for failure to prosecute for abuse of discretion. See, e.g., Ruzsa

v. Rubenstein & Sendy Attys at Law, 520 F.3d 176, 177 (2d Cir. 2008). This is because the

power of a district court to take such action – while explicitly sanctioned by Rule 41(b) –

“has generally been considered an ‘inherent power,’ governed not by rule or statute but by

the control necessarily vested in courts to manage their own affairs so as to achieve the

7
According to the exhibit list submitted by Lewis before trial, the only other pieces
of evidence Lewis planned to introduce were (1) copies of his medical records from 1987 to
1993, (2) a “Department of Corrections Staff Planning Grid,” and (3) “Department of
Corrections directives regarding inmate transfers and intake.” Plaintiff’s Exhibit List, Lewis
v. Benson, No. 99 Civ. 612 (N.D.N.Y. June 10, 2005) (Docket No. 174). Assuming that such
evidence would have supported Lewis’s claims, it could have, at most, provided the basis for
a conclusion that Lewis sustained some kind of injury while being transferred to Great
Meadow at a time when the defendants were on duty. Without Lewis’s testimony, however,
this evidence could not have supported a jury finding that defendants assaulted Lewis in
violation of his constitutional rights.

10
orderly and expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-

31 (1962); see also Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972)

(noting that, because authority to dismiss for lack of prosecution is “inherent” power of

district courts, “the scope of review over an order of dismissal accorded an appellate court

is extremely narrow”). We identify abuse of discretion when a district court’s challenged

decision rests “on an error of law (such as application of the wrong legal principle) or a

clearly erroneous factual finding,” or when its ruling “cannot be located within the range of

permissible decisions.” Wynder v. McMahon, 360 F.3d 73, 76 (2d Cir. 2004) (internal

quotation marks omitted). In this case, Lewis does not charge the district court with errors

of law or fact. Rather, he asserts that the dismissal falls outside the range of permissible

decisions.8

In reviewing this argument, we are mindful that dismissal for lack of prosecution is

a “harsh remedy” that should “be utilized only in extreme situations.” Minnette v. Time

Warner, 997 F.2d 1023, 1027 (2d Cir. 1993) (internal quotation marks omitted); cf. Gill v.

8
In his pro se submissions, Lewis asserts that the district court’s dismissal violated
his Seventh Amendment right to a jury trial. The proper dismissal of an action pursuant to
Rule 41(b) does not violate the Seventh Amendment. See generally Fed. R. Civ. P. 41, 1963
Advisory Comm. Note (“The first sentence of Rule 41(b), providing for dismissal for failure
to prosecute or to comply with the Rules or any order of court, and the general provisions of
the last sentence remain applicable in jury as well as nonjury cases.”). However, in light of
our duty to read pro se submissions “to raise the strongest arguments they suggest,” Bertin
v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (internal quotation marks omitted), and
noting that Lewis also contends that the district court failed to consider alternatives to
dismissal or to discuss Lewis’s options directly with him, we construe his argument as a
challenge to the district court’s exercise of discretion under Rule 41(b).

11
Stolow, 240 F.2d 669, 670 (2d Cir. 1957) (“In final analysis, a court has the responsibility

to do justice between man and man; and general principles cannot justify denial of a party’s

fair day in court except upon a serious showing of willful default.”). In recognition of this

principle, “[w]e have in fact fashioned guiding rules that limit a trial court’s discretion” when

determining whether dismissal for failure to prosecute is appropriate in a particular case.

United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). We

review the trial court’s decision by examining five factors, namely, whether

(1) the plaintiff’s failure to prosecute caused a delay of significant duration;
(2) plaintiff was given notice that further delay would result in dismissal; (3)
defendant was likely to be prejudiced by further delay; (4) the need to alleviate
court calendar congestion was carefully balanced against plaintiff’s right to an
opportunity for a day in court; and (5) the trial court adequately assessed the
efficacy of lesser sanctions.

Id.; see also Harding v. Fed. Reserve Bank of N.Y., 707 F.2d 46, 50 (2d Cir. 1983) (listing

factors). In making use of this test, “[n]o one factor is dispositive, and ultimately we must

review the dismissal in light of the record as a whole.” United States ex rel. Drake v. Norden

Sys., Inc., 375 F.3d at 254; see also Palmieri v. Defaria, 88 F.3d 136, 140 (2d Cir. 1996)

(holding that proper review of dismissal for failure to prosecute requires careful examination

of “each case in its own factual circumstances” (internal quotation marks omitted)).

Significantly, however, the cases in which we have announced and applied the Drake

factors have almost exclusively concerned instances of litigation misconduct such as the

failure to comply with a scheduling order or timely to respond to pending motions. See, e.g.,

12
Ruzsa v. Rubenstein & Sendy Attys at Law, 520 F.3d at 177 (missing deadline for filing

amended complaint); United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d at 250

(same); LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (failing to

respond to motion for summary judgment); Lucas v. Miles, 84 F.3d 532, 534-35 (2d Cir.

1996) (failure timely to file amended complaint); Nita v. Conn. Dep’t of Envtl. Prot., 16 F.3d

482, 485 (2d Cir. 1994) (failing to respond to pending motions); Minnette v. Time Warner,

997 F.2d at 1025, 1027 (failing to respond to defendant’s motion for dismissal); Peart v. City

of New York, 992 F.2d 458, 461 (2d Cir 1993) (failing “to comply with two court orders and

otherwise demonstra[ting] a lack of respect for the court,” culminating in failure to appear

at start of trial); Romandette v. Weetabix Co., 807 F.2d 309, 311-12 (2d Cir. 1986) (failing

to effect timely service); Harding v. Fed. Reserve Bank of N.Y., 707 F.2d at 48-51 (failing

timely to file amended complaint and other litigation delays). In such contexts, where

dismissal operates as a sanction for dilatory tactics during the course of litigation or for

failure to follow a court order, the straightforward application of the factors identified above

provides a reasonable means for evaluating the district court’s exercise of its discretion under

Rule 41(b).

This case, however, presents a quite different scenario. Lewis did not miss a filing

deadline, fail to comply with a discovery order, overlook a scheduled court date, indulge in

dilatory litigation tactics, or engage in any other misconduct. Thus, the factors discussed in

Drake for identifying abuse of discretion in a district court’s decision to impose the

13
“sanction” of dismissal in response to a plaintiff’s dilatory, contumacious, or forgetful

behavior are not particularly helpful to our analysis. Rather, Lewis’s refusal to testify while

housed at Great Meadow is better viewed as presenting the district court with two questions:

(1) whether to grant Lewis the adjournment he requested, and (2) upon denial of that request,

whether to dismiss Lewis’s case due to his refusal to offer the only direct evidence that could

support his claims. We consider each of these issues in turn.

B. The District Court Acted Within Its Discretion in Granting Dismissal

1. Denial of Adjournment

Accommodating Lewis’s concerns, first raised after the jury was sworn, would have

required that the “trial [be] adjourned and then rescheduled to be tried out in Syracuse.” Trial

Tr. at 16. Such an adjournment would have delayed proceedings “a few weeks or a month.”

Id. at 15. It would, moreover, have required the declaration of a mistrial and the dismissal

of the sworn jury. Under these circumstances, the first relevant inquiry is not, as in Drake,

whether the delay would have been temporally “significant,” 375 F.3d at 254, but rather

whether the district court’s decision to deny the requested adjournment was itself an abuse

of discretion.

This court’s precedent instructs us to be “particularly solicitous of a district court’s

ruling on a motion to adjourn the scheduled start of a trial proceeding.” Sequa Corp. v. GBJ

Corp., 156 F.3d 136, 147-48 (2d Cir. 1998). We will not disturb such a ruling absent a

14
showing of “clear abuse.” Id. “[T]o make that showing, the complaining party must

establish both that the denial of the adjournment was arbitrary, and that it substantially

impaired the presentation of his case.” Id.; accord Farias v. Instructional Sys., Inc., 259 F.3d

91, 99-100 (2d Cir. 2001) (identifying no abuse where, on first day of trial, court denied

continuance to obtain absent witness and noting that decisions regarding trial adjournments

“rest within the sound discretion of the trial court and will be overturned only” where “there

is showing both of arbitrariness and of prejudice to the defendant”); cf. Ungar v. Sarafite,

376 U.S. 575, 589 (1964) (“The matter of continuance is traditionally within the discretion

of the trial judge, and it is not every denial of a request for more time that violates due

process even if the party fails to offer evidence or is compelled to defend without counsel.”).

Applying these principles to this case, we conclude that when a party requests a trial

adjournment of several weeks after a jury has been sworn, under circumstances that will

require that jury to be dismissed and a new one empaneled, a district court acts well within

its discretion in requiring strong justification for the adjournment. See United States v.

Cusack, 229 F.3d 344, 349 (2d Cir. 2000) (identifying no abuse where district court denied

“two to three week[]” continuance requested “[i]n the middle of trial” to obtain expert

witness); cf. Moffitt v. Ill. State Bd. of Educ., 236 F.3d 868, 872, 876 (7th Cir. 2001)

(affirming Rule 41(b) dismissal after jury was sworn where plaintiff, “‘the only one . . . that

[could] testify to matters alleged in the complaint,’” was not available to testify and noting

15
that “a court faced with an eleventh-hour request to postpone a trial is entitled to a more

detailed showing than [plaintiff] and her counsel supplied to the district court in this case”).

The only such justification suggested by the record is Lewis’s fear that he would be abused

if housed during trial at Great Meadow, the site of the alleged assault by the defendants,

some of whom were still employed at the facility at the time of trial.

On the record presented here, this justification was not sufficiently strong to remove

denial of the requested continuance from the range of permissible decisions. The district

court observed that it could “understand [Lewis’s] discomfort.” Trial Tr. at 15. We construe

this statement to reflect the court’s recognition of the subjective genuineness of Lewis’s

professed fear. The court did not find, nor was it asked to find, that Lewis’s fears were

objectively reasonable. Rather, the court referenced a “presumption” that Lewis would “be

treated properly and lawfully” at any state correctional facility in which he was housed during

trial, including Great Meadow. Id.9 We identify no error in the district court’s reliance on

such a presumption in the absence of objective evidence to the contrary. To hold otherwise

would place an enormous burden on district courts hearing prisoners’ complaints, because

9
Such a presumption can be derived, in part, from Supreme Court precedent holding
that prisoners cannot dictate the particular institution within a penal system to which they are
confined. In Olim v. Wakinekona, 461 U.S. 238 (1983), the Court ruled that “an inmate has
no justifiable expectation that he will be incarcerated in any particular prison within a State.”
Id. at 245. Rather, “[c]onfinement in any of the State’s institutions is within the normal
limits or range of custody which the conviction has authorized the State to impose.”
Meachum v. Fano, 427 U.S. 215, 225 (1976) (emphasis added); accord McKune v. Lile, 536
U.S. 24, 39 (2002) (“It is well settled that the decision where to house inmates is at the core
of prison administrators’ expertise.”). Defendants relied on this line of cases in opposing
Lewis’s request for an adjournment and transfer of the trial. See Trial Tr. at 14-17.

16
if an incarcerated plaintiff’s subjective fear of abuse in a particular penal facility were

enough to mandate a transfer out of that facility during trial, then why not also during

depositions, during all phases of discovery, or, indeed, as soon as the complaint is filed?

This is not to suggest that district courts should afford anything but careful review to

incarcerated litigants’ claims that fears of retaliation hamper their presentation of evidence

in cases against prison officials. Depending on the circumstances, we expect that any

number of steps might be taken to mitigate such fears, including the accommodation

suggested by the defendants here, namely, placement in a special-housing unit during the

course of trial. See N.Y. Comp. Codes R. & Regs. tit. 7, §§ 301.5, 330.1 (2009) (providing

for inmates in protective custody to be housed in SHU to “maximize the safety and security

of both the inmates and the facility”).10 Indeed, had the district court decided that in this case

it was, in fact, appropriate to grant an adjournment and transfer the trial, we would view such

a ruling as also falling within the court’s broad discretion. Nevertheless, mindful of the ease

with which § 1983 claimants may assert subjective fears of abuse, as well as the considerable

challenges that confront penal authorities in ensuring the lawful confinement, transportation,

and transfer of thousands of inmates, some of whom, like Lewis, have demonstrated records

for violence (even in custody) that demand maximum-security placement, we decline to hold

that the district court was required to grant such an adjournment.

10
To the extent Lewis expressed concern that some defendants were still employed
at Great Meadow, the record does not indicate whether any consideration was given to the
possibility of not having these defendants assigned to duty – or at least not having them
assigned to duty involving inmate contact – during the brief two- to three-day period Lewis
would have been held at Great Meadow while his case was on trial.

17
 Finally, in upholding the district court’s denial of the continuance requested here, we

note that Lewis has not demonstrated good cause for failing to alert the district court to his

concerns about Great Meadow in a timely fashion. Lewis’s assertion that he did not know

that he would be housed at Great Meadow until 10:00 a.m. on the morning of trial is hardly

convincing. Lewis may not have known for a fact that he would be so housed, but neither

he nor his counsel can claim surprise in light of the totality of the circumstances. Lewis was

a violent criminal serving, in effect, a life sentence for multiple murders. He also had a

record for violence in prison.11 Lewis could hardly have expected to be confined during the

pendency of his civil trial in anything but a maximum-security facility.12 Moreover, neither

he nor his counsel could reasonably have thought that Lewis would continue to be housed

at Auburn during trial and transported daily to the federal courthouse in Albany, a driving

distance of more than 150 miles each way. Thus, the very real probability that Lewis would

be detained during trial at Great Meadow should have been apparent to him and his lawyer

well before jury selection. If Lewis feared detention in that facility and wished to ensure his

confinement elsewhere, he or his counsel should have made a motion before the day of trial.

11
The recognized degree of danger posed by Lewis is best evidenced by his own
counsel’s proposal that Lewis be shackled at the feet and one hand during the trial of his
§ 1983 action. See supra at [6].
12
The dissent suggests that Lewis’s past violent behavior is “largely irrelevant” to the
analysis here. Post at [28] n.1. We discuss this behavior simply to explain why (1) the
number of state facilities in which Lewis could be housed during trial was limited, (2) Lewis
and his counsel could be expected to understand those limitations, and (3) Lewis’s eleventh-
hour request for an adjournment and transfer of the trial presented the federal court and the
state penal authorities with particular challenges.

18
 Even if Lewis could not have anticipated his transfer to Great Meadow before the

morning of trial, the transcript indicates that Lewis was in contact with his attorney both

before and during jury selection and, according to Lewis, both were aware of Lewis’s

impending transfer before the morning’s proceedings began. However, rather than bring

these concerns to the district court’s attention promptly, Lewis and his counsel waited until

moments before opening statements were to be made. Although the delay was short – just

over an hour – in that brief time, a pretrial conference was held, during which the parties

were specifically asked to raise any issues requiring resolution before the trial began. More

important, a jury was selected and sworn. In denying the requested continuance, the district

court could have properly considered plaintiff’s failure to raise his concerns about Great

Meadow housing or to seek an adjournment during this critical time.

In sum, because Lewis (1) failed to demonstrate that his fear of confinement at Great

Meadow during trial was objectively reasonable so as to warrant his refusal to testify at trial,

and (2) unreasonably delayed in moving to avoid trial confinement at Great Meadow, we

conclude that the district court acted within its discretion in refusing to grant an adjournment

and to transfer the trial to another courthouse within the Northern District.

2. Dismissal for Refusal to Testify

We proceed to consider the district court’s related, yet analytically distinct decision

to dismiss Lewis’s case with prejudice in light of his refusal to testify in the absence of an

adjournment and transfer.

“It is beyond dispute” under our precedent “that a district court may dismiss a case

19
under Rule 41(b) when the plaintiff refuses to go forward with a properly scheduled trial.”

Zagano v. Fordham Univ., 900 F.2d 12, 14 (2d Cir. 1990); see generally 9 Charles A. Wright

& Arthur R. Miller, Federal Practice & Procedure § 2370, at 389-95 & nn.35-36 (3d ed.

2008) (“An action may be dismissed under Federal Rule 41(b) if the plaintiff, without

offering some explanation that is satisfactory to the court, is not ready to present his or her

case at trial or if the plaintiff refuses to proceed at the trial.”).

Our sister circuits agree. “One naturally expects the plaintiff to be present and ready

to put on her case when the day of trial arrives. A litigant’s day in court is the culmination

of a lawsuit, and trial dates – particularly civil trial dates – are an increasingly precious

commodity in our nation’s courts.” Moffitt v. Ill. State Bd. of Educ., 236 F.3d at 873. Thus,

where a district court is confronted with a “plaintiff’s unwillingness to proceed on the date

scheduled for trial, as opposed to the more typical failure to comply with her discovery

obligations on time, or to meet some other pre-trial deadline,” it is “not unreasonable” to

consider treating such unwillingness “more severely.” Id. (internal quotation marks omitted);

see Knoll v. AT&T Co., 176 F.3d 359, 365 (6th Cir. 1999) (“Where a plaintiff does not

appear at the trial date or, as in this case, is inexcusably unprepared to prosecute the case,

Rule 41(b) dismissal is particularly appropriate. Indeed, such behavior constitutes the

epitome of a ‘failure to prosecute.’”); Owen v. Wangerin, 985 F.2d 312, 317 (7th Cir. 1993)

(“The remedy [of dismissal for failure to prosecute] is usually applied when the plaintiff is

not ready for trial or fails to appear.”); cf. Brock v. Unique Racquetball & Health Clubs, Inc.,

786 F.2d 61, 64 (2d Cir. 1986) (recognizing in context of Rule 55 that trial judge “must have

20
broad latitude to impose the sanction of default for non-attendance occurring after a trial has

begun.” (citations omitted)).13

This reasoning applies with no less force where, as here, a party’s expressed

unwillingness to proceed to trial follows the denial of a request for a continuance. See, e.g.,

Knoll v. AT&T Co., 176 F.3d at 365 (affirming Rule 41(b) dismissal where attorney, inter

alia, “attempted to force the court to grant a continuance by refusing to proceed on the day

of trial”); Lopez v. Aransas County Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978)

(holding that “trial court’s denial of plaintiff[s’] eleventh-hour oral motion for a continuance

was well within its discretion” and that, “faced with . . . plaintiffs’ refusal to proceed, [district

court] did not abuse its discretion in dismissing the cause with prejudice for want of

prosecution”); Ali v. A & G Co., 542 F.2d 595, 596-97 (2d Cir. 1976) (holding that Rule

41(b) dismissal was not abuse of discretion where court previously denied plaintiffs’ request

to delay trial due to incomplete discovery and plaintiffs and their attorney were not ready to

proceed on day of trial); Hooper v. Chrysler Motors Corp., 325 F.2d 321, 322 (5th Cir. 1963)

(holding that district court did not abuse its discretion where “case was dismissed with

prejudice by the District Court when [plaintiff] declined to go to trial after denial of his

motion for continuance”). To the contrary, where a plaintiff refuses to proceed with trial

13
See generally 9 Wright & Miller, Federal Practice & Procedure § 2369 (“Some
courts have held that it is reasonable to treat serious failures to prosecute the litigation more
harshly under Rule 41(b) than failures to comply with discovery orders in a timely fashion.
As a rather dramatic example of such a serious failure, courts have pointed to the failure to
attend trial. A dismissal based on what is deemed a serious failure to prosecute by the court
has been found appropriate, even when there is no other record, let alone a pattern, of delay
and contumacious conduct by the plaintiff.”).

21
following a district court’s unfavorable ruling on a request for continuance or in limine

motion, we have noted that a district court “ha[s] no real choice but to dismiss the case.”

Palmieri v. Defaria, 88 F.3d at 140; see also Zagano v. Fordham Univ., 900 F.2d at 15

(observing that, upon denial of plaintiff’s motion to dismiss action without prejudice,

plaintiff “was obliged to go to trial, failing which involuntary dismissal for failure to

prosecute [was] appropriate” (internal quotation marks omitted; alteration in original)).14 But

see Merker v. Rice, 649 F.2d 171, 174-75 (2d Cir. 1981) (holding that district court abused

its discretion in dismissing action following plaintiff’s refusal to proceed without expert

witness where such refusal was not “arbitrary or unreasonable”).

The concerns underlying these decisions are only heightened once a civil jury has been

selected and sworn. “[T]he right to a jury trial is too precious to permit its effectiveness to

be destroyed by non-utilization of jurors drawn caused by unnecessary delays in preparation,

lack of attention to the case, or undue procrastination by party or counsel or both.”

Theilmann v. Rutland Hosp., Inc., 455 F.2d at 856 (internal citation omitted). Therefore,

where a party fails to appear or refuses to proceed with trial “after the jury ha[s] been

drawn,” dismissal with prejudice may be particularly appropriate. Id. (emphasis in original);

see also Michelsen v. Moore-McCormack Lines, Inc., 429 F.2d 394, 395-97 (2d Cir. 1970)

(holding that district court did not abuse its discretion where, after jury was selected, court

14
Indeed, to prevent parties from subverting the finality requirement of 28 U.S.C.
§ 1291 by refusing to proceed under these circumstances, we have held that, as a “general
rule . . . interlocutory orders do not properly merge with a final judgment dismissing an
action for failure to prosecute.” Shannon v. Gen. Elec. Co., 186 F.3d 186, 192 (2d Cir.
1999).

22
denied renewed motion for continuance to obtain presence of plaintiff and expert, and

dismissed case for failure to prosecute). See generally Judith S. Kaye, “Jury Reform: A

Work in Progress,” 86 Judicature 147, 147 (2002) (“[W]e must be concerned with the quality

of the jury experience for each person summoned to serve. We want jurors to experience a

court system that works well, respects their time and their lives, and values their performance

of this most vital civic duty.”).

Again, we recognize that Lewis’s refusal to testify without an adjournment and

transfer was grounded in a professed concern for his personal safety if housed during trial

at Great Meadow. We reiterate that such concerns warrant careful district court

consideration. In this case, despite the fact that Lewis waited until a jury was empaneled

before raising his detention concerns, the district court explored various options with the

detaining officials and the parties, the most promising of which was Lewis’s detention in the

video-monitored Great Meadow SHU for the brief trial. The court took a number of

recesses, the last of which afforded Lewis and his attorney an opportunity to consider the

SHU option. While our review task would be easier if, upon receiving Lewis’s refusal to

accept the SHU option, the district court had provided a fuller explanation for its decision

not to adjourn and transfer the case – an option first identified by the court itself – and to

order dismissal with prejudice, we nevertheless conclude that the decision manifests no abuse

of discretion.

3. The Drake Factors Do Not Dictate a Contrary Result

Even if we were to review the challenged dismissal by reference to the five factors

23
identified in Drake, we would reach no different conclusion.

While a delay of several weeks in prosecuting a case is not always significant, see,

e.g., Shannon v. Gen. Elec. Co., 186 F.3d 186, 194 (2d Cir. 1999), it is more likely to be so

when it occurs after a jury has been sworn because of the risk of a mistrial. Cf. Peart v. City

of New York, 992 F.2d at 461-62 (holding that, while delay caused by plaintiff’s counsel’s

failure to appear at trial “might be said to be minimal in view of her offer to begin trying the

case ten days later . . . , we have upheld a dismissal for failure to prosecute where a plaintiff's

refusal to proceed to trial was of much shorter duration”). In this case, Lewis’s refusal to

testify unless his case was adjourned and transferred not only risked a mistrial, it demanded

it. Under these circumstances, the first Drake factor supports the district court’s decision to

dismiss.

The second factor yields the same conclusion because the record demonstrates that

Lewis and his counsel were given both clear notice that Lewis’s continued refusal to testify

could result in dismissal and multiple opportunities to confer to determine whether to change

course to avoid that result. See United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d at

254; cf. LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d at 210 (holding that “brief and

technical” warning of dismissal to pro se plaintiff was insufficient).

While a delay of several weeks would not have prejudiced defendants in challenging

the merits of Lewis’s claim, it would have prejudiced the entity bearing their costs, the State

of New York, insofar as it had expended resources to arrange for the presence of the eight

defendants, an additional witness, and Lewis himself in Albany on the day of trial. While

24
the need to duplicate these expenses might not, by itself, warrant dismissal, the factor lends

some support to the district court’s decision. Cf. Al-Torki v. Kaempen, 78 F.3d 1381, 1385

(9th Cir. 1996) (“Failure to appear for trial, without excuse, prejudices an adversary and

interferes with the court’s docket about as much as any procedural default can. The other

side is likely to have spent thousands of dollars getting its lawyers ready to try the case and

arranging for witnesses and exhibits to be available. If the trial does not proceed, the money

and effort will have been wasted. The judge is likely to have gone to considerable trouble

to clear out time from criminal cases, motion hearings, work in chambers, and other matters,

for the civil trial. In many cases . . . jurors and witnesses will have been put to great

inconvenience.”); Johnson v. Kamminga, 34 F.3d 466, 469 (7th Cir. 1994) (observing, in

case requiring transportation of incarcerated witnesses, that “the costs associated with a delay

in proceeding with a trial are likely to be more burdensome than those occasioned by delays

in discovery,” and “[c]onsequently, it is not unreasonable to treat a failure to attend trial more

severely than a failure to comply with discovery orders in a timely fashion”).

Finally, while the district court did not, at least on the record, carefully balance the

need to alleviate court calendar congestion against plaintiff’s right to his day in court, nor

assess the efficacy of lesser sanctions, it is not clear how these final two factors would be

weighed in this case. Defense counsel did propose one compromise solution – housing

Lewis in Great Meadow’s SHU during trial, where his safety could be monitored by video

– that Lewis rejected. No party suggested that Lewis’s evidence might be offered in a form

other than live testimony, see generally Muhammad v. Warden, Baltimore City Jail, 849 F.2d

25
107, 111-13 (4th Cir. 1988) (discussing potential alternatives where inmate-plaintiff cannot

be present at trial),15 nor does such a possibility seem likely given the critical need for a jury

to assess his credibility, see id. at 111 (observing that where credibility assessment is critical

“[n]ot only the appearance but the reality of justice is obviously threatened by [inmate

witness’s] absence”); see also Stone v. Morris, 546 F.2d 730, 736 (7th Cir. 1976) (discussing

factors relevant to determining whether inmate-plaintiff should be permitted to testify in

person, including “whether . . . the prisoner is the only person who can render testimony

consistent with the allegations of his complaint”).16 Accordingly, we view these two factors

as neutral, neither supporting nor undermining the challenged dismissal decision.

Thus, although we do not think the Drake factors are particularly useful to our analysis

of the dismissal judgment in this case, because three of those factors support the dismissal,

while two of the factors are neutral, we conclude that, even on such review, the judgment

should be affirmed.

III. Conclusion

To summarize, we conclude as follows:

(1) The challenged judgment of dismissal for failure to prosecute pursuant to Fed. R.

Civ. P. 41(b), entered after the jury was sworn, is properly reviewed by considering (a) the

15
In any event, arranging for such an alternative might itself have necessitated a delay
similar to that required to grant an adjournment and transfer.
16
These cases consider the question of how a court should determine whether to
permit an inmate-plaintiff to be present at trial, and not how to address an inmate-plaintiff’s
refusal to testify when he has been permitted to appear and the day of trial has arrived, a
scenario raising different concerns.

26
district court’s refusal to grant an adjournment and transfer of the case; and (b) the district

court’s decision to dismiss the case with prejudice when plaintiff, upon failing to secure the

requested adjournment and transfer, refused to testify at trial.

(2) The district court acted within its discretion in denying adjournment and transfer

where plaintiff (a) failed to demonstrate that his subjective concerns about detention at Great

Meadow were also objectively reasonable and not adequately accommodated by placement

in the Great Meadow SHU; and (b) should have recognized and raised his concerns about

Great Meadow detention long before the jury was sworn.

(3) The district court similarly acted within its discretion in dismissing plaintiff’s case

with prejudice when, upon failing to secure the requested adjournment and transfer of his

trial, he refused to adduce the only direct evidence supporting his claim, i.e., his own

testimony.

(4) Because three of the factors identified in United States ex rel. Drake v. Norden

Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004) also support dismissal, while two are neutral, the

district court’s judgment must be affirmed even on such analysis.

The judgment of the district court is therefore A FFIRMED.

27
BERMAN , District Judge, dissenting:

I respectfully dissent because I believe that the district court improperly denied Lewis his

day in court. See Truax v. Corrigan, 257 U.S. 312, 332 (1921) (“[t]he due process clause

requires that every man shall have the protection of his day in court”); Sokol Holdings, Inc. v.

BMB Munai, Inc., 542 F.3d 354, 358 (2d Cir. 2008) (“It is a fundamental principle of American

law that every person is entitled to his or her day in court.”) (quoting Tice v. Am. Airlines, Inc.,

162 F.3d 966, 968 (7th Cir. 1998)); see also Holt v. Pitts, 619 F.2d 558, 561–62 (6th Cir. 1980)

(“[W]hen an inmate’s civil action reaches the trial stage, and his claim proves sufficiently

meritorious to survive motions for dismissal and summary judgment, a court must then take all

reasonable steps necessary to insure that the inmate receives the fair ‘day in court’ to which he is

entitled.”).1

Lewis alleges in this civil action for damages that he was physically and sexually

assaulted by a number of New York State Department of Corrections officers upon arriving at

Great Meadow Correctional Facility (“Great Meadow”) on or about May 30, 1990, and while

wearing “body restraints.” (Am. Compl., dated June 1, 1992.) The case was filed on June 10,

1991 and finally brought to trial on June 21, 2005, i.e., over fourteen years after it was

commenced.2
1
The majority’s references to Lewis’s past criminal behavior are, most respectfully, largely
irrelevant to this analysis. (See Majority Op. at 3 & n.2, 6, 17, 18 & n.11); see also Saperstein v.
Palestinian Auth., No. 04 Civ. 20225, 2008 WL 4467535, at *16 (S.D. Fla. Sept. 29, 2008) (“Our
system is respected because all litigants, even unpopular ones, have the right to their day in court
and all litigants are entitled to equal justice under our laws without sympathy or prejudice for
either side.”).
2
The docket reflects that from the time the case was filed in 1991 through June 21, 2005,
Lewis actively prosecuted his claims, including discovery and summary judgment proceedings.
See Alvarez v. Simmons Mkt. Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir. 1988);
Romandette v. Weetabix Co., 807 F.2d 309, 312 (2d Cir. 1986). On at least three occasions,

28
 As the majority indicates, at approximately 10:00 a.m. on the first day of trial, Lewis’s

counsel advised Lewis that during the trial he would be housed at Great Meadow, “the facility

where the alleged assaults had occurred and where certain of the defendants were still

employed.” Majority Op. at 5; see Appellant’s Supp. Br., dated Aug. 6, 2008, at 1. By

11:48 a.m., Lewis had raised with the district court through counsel his concern “about testifying

particularly against the defendants who are now assigned to Great Meadow[.]” (Trial Tr. at 13.)

By 12:12 p.m., Lewis’s case was dismissed with prejudice. (Id. at 17.)3

Upon hearing Lewis’s concerns on the morning of June 21, 2005, the Assistant State

Attorney General defending the case stated that he could “try[] to arrange a new facility” at

which Lewis could be housed during trial but also noted that he could not “do that at the

moment.” (Trial Tr. at 14.)4 Shortly after 12:00 p.m., the district court stated that it could

“understand [Lewis’s] discomfort,” and, upon confirming that certain of the defendants were in

fact still assigned to Great Meadow, the district court (not Lewis) sua sponte raised the option of

adjournment. (Id. at 15.)5 “[T]he other choice [is] to adjourn this trial for about a few weeks or a

Lewis applied to the district court for a trial date. (A 16. Nos. 110, 111; A. 28 No. 165.)
3
As the majority notes, “[i]n his supplemental submission to this court, Lewis asserts that
[trial counsel] informed the district court ‘before jury selection that the plaintiff was in fear of his
life from the defendants . . . and would not allow himself to be transferred back to Great Meadow
without a court order of protection.’” (Majority Op. at 7 n.6 (quoting Appellant’s Supp. Br. at
1).)
4
The Assistant State Attorney General also suggested that Lewis be placed in the Special
Housing Unit (“SHU”) at Great Meadow during trial, presumably so that cameras could monitor
Lewis and his jailers twenty-four hours a day. Lewis declined stating that SHU “was where some
of the incidents [in question] . . . took place.” (Id. at 17.)
5
THE COURT: “[A]re there particular defendants here who are still assigned to that
facility [Great Meadow]?” MR. SCHWARTZ: “Yes, your Honor.” (Id.)

29
month” and “the case can be tried in Syracuse for a few days,” which would have allowed Lewis

to avoid being housed at Great Meadow during his trial. (Id.)

At approximately 12:10 p.m., Lewis’s trial counsel stated to the district court that Lewis

“fears for his life if he’s ever brought back to [Great Meadow]” and that Lewis’s “preference

would be to have this trial adjourned and then rescheduled to be tried out in Syracuse.” (Id. at

16.) Lewis’s counsel made clear that Lewis was “not . . . agreeing to . . . a dismissal, and he’s

not requesting that.” (Id. at 17.)

In dismissing Lewis’s case with prejudice shortly before 12:12 p.m., the district court

appears not to have conducted any hearing, for example, regarding Lewis’s claim of possible

reprisals. The rationale offered for the district court’s decision appears to be that “the plaintiff

has no right to select the facility he’s going to stay at during the two or three-day trial” and

“[t]here’s a presumption that any facility he’s staying at, he’s going to be treated properly and

lawfully.” (Id. at 14, 15.)

Unlike the majority, I believe that in reviewing the district court’s decision to dismiss this

case with prejudice, we should apply the factors set forth in United States ex rel. Drake v.

Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). See id. (“[W]e review the trial court’s

decision [to dismiss for failure to prosecute] by examining whether: (1) the plaintiff’s failure to

prosecute caused a delay of significant duration; (2) plaintiff was given notice that further delay

would result in dismissal; (3) defendant was likely to be prejudiced by further delay; (4) the need

to alleviate court calendar congestion was carefully balanced against plaintiff’s right to an

opportunity for a day in court; and (5) the trial court adequately assessed the efficacy of lesser

sanctions.”). The conclusion I draw easily from such analysis is that this is “not one of those rare

30
occasions when the drastic remedy of dismissal was warranted.” Colon v. Mack, 56 F.3d 5, 7

(2d Cir. 1995) (internal quotations and citations omitted).

First, it is clear that, but for the fact that he learned on the morning of trial that he would

be housed at Great Meadow, Lewis was prepared to testify at trial. See Peterson v. Term Taxi,

Inc., 429 F.2d 888, 890–91 (2d Cir. 1970) (per curiam). A relatively brief postponement of the

trial (at most “a few weeks or a month,” as suggested sua sponte by the court below) would have

been an inconsequential delay in the fourteen-year history of this case. See LeSane v. Hall’s Sec.

Analyst, Inc., 239 F.3d 206, 210 (2d Cir. 2001); Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996);

see also Francis v. Morganthau, No. 97 Civ. 5348, 1998 WL 226186, at *2 (S.D.N.Y. May 4,

1998).

Second, Lewis’s case was dismissed without any clear advance warning, i.e., unless one

concludes that less than 12 minutes notice on the first day of trial is sufficient. Shortly after

12:00 p.m., the district court stated, “If there’s no other solution, I would dismiss the case and

certainly preserve [Lewis’s] right to appeal.” (Trial Tr. at 15); see LeSane, 239 F.3d at 210. That

is what occurred approximately 12 minutes later. (See Trial Tr. at 17.) But, in fact, it was not

until the district court actually dismissed the case shortly before 12:12 p.m. that it notified Lewis

that dismissal would be “with prejudice.” (Id. (“Okay. The Court is going to grant [defendants’]

motion and dismiss the case, with prejudice.”).)6

Third, any inconvenience to the defendants and/or costs incurred by the State of New

York in postponing the trial would have been insignificant and not “specially burdensome,”

LeSane, 239 F.3d at 210, particularly compared to the harm to Lewis in being barred from
6
When the district court raised the possibility of briefly adjourning the trial, the Assistant
State Attorney General stated, “it’s Mr. Lewis’s option if he wishes not to testify and proceed
with trial, I would submit that the case be dismissed.” (Id. at 15.)

31
presenting his case, see Webber v. Eye Corp., 721 F.2d 1067, 1071 (7th Cir. 1983) (per curiam).

“[I]n cases where delay is more moderate or excusable, the need to show actual prejudice is

proportionally greater[.]” Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982);

see also Romandette, 807 F.2d at 312.

Fourth, the trial in this case was scheduled to last no more than three days. Absent any

“evidence of an extreme effect on court congestion,” Lewis’s right to be heard should not have

been “subrogated to the convenience of the court.” Lucas, 84 F.3d at 535–36; see Coats v. Dep’t

of Veteran Affairs, 268 Fed. Appx. 125, 127 (2d Cir. 2008); see also Freed v. Braniff Airways,

Inc., 119 F.R.D. 10, 11 (S.D.N.Y. 1987). The district court, as noted, acknowledged sua sponte

that it could “understand [Lewis’s] discomfort,” and that it could “adjourn this trial for about a

few weeks or a month” and “the case can be tried in Syracuse for a few days.” (Trial Tr. at 15.)

In these circumstances, Lewis’s concerns “cannot be dismissed out of hand” as subjective or

unreasonable. Colon, 56 F.3d at 7; see also Merker v. Rice, 649 F.2d 171, 174–75 (2d Cir.

1981).

Fifth, the district court did not explain why it abandoned the alternatives of adjourning

the trial for “about a few weeks or a month,” or moving the proceedings to Syracuse, or having

the Assistant State Attorney General further explore alternative housing. (Trial Tr. at 14–15); see

Martens v. Thomann, 273 F.3d 159, 182 (2d Cir. 2001); Spencer v. Doe, 139 F.3d 107, 113 (2d

Cir. 1998); Colon, 56 F.3d at 7. Nor does the record reveal why the district court failed to

consider other practical alternatives to dismissal, e.g., “that Lewis’s evidence might be offered in

a form other than live testimony.” (Majority Op. at 25); see Muhammad v. Warden, Baltimore

32
City Jail, 849 F.2d 107, 113 (4th Cir. 1988); see also Sokol Holdings, 542 F.3d at 358; Holt, 619

F.2d at 561–62; Hernandez v. Whiting, 881 F.2d 768, 771 (9th Cir. 1989).

Rather than relying upon Drake, the majority appears to create a new standard of analysis

for this case: “The challenged judgment of dismissal for failure to prosecute pursuant to Fed. R.

Civ. P. 41(b), entered after the jury was sworn, is properly reviewed by considering (a) the

district court’s failure to grant an adjournment and transfer of the case; and (b) the district court’s

decision to dismiss the case with prejudice when plaintiff, upon failing to secure the requested

adjournment and transfer, refused to testify at trial.” (Majority Op. at 26–27.) I believe that this

is an unnecessary “reach” and that this case is purely and simply about a dismissal because Lewis

refused to testify at trial out of fear of reprisals. The Drake factors serve as “guiding rules that

limit a trial court’s discretion in this context out of recognition . . . that dismissal for failure to

prosecute is a harsh remedy to be utilized only in extreme situations.” Drake, 375 F.3d at 254

(internal quotations and citation omitted). If, as the majority posits, “a district court may dismiss

a case under Rule 41(b) when the plaintiff refuses to go forward with a properly scheduled trial,”

(Majority Op. at 19 (citation omitted)), there is every reason that the Drake factors should be

considered. See Scott v. Perkins, 150 Fed. Appx. 30 (2d Cir. 2005).7

For the foregoing reasons, I respectfully dissent.

7
The decision by summary order in Scott is cited solely to identify a case with similar
facts in which this Court applied the Drake factors. The Scott decision is not cited as precedent.
See Local Rules of the Second Circuit Relating to the Organization of the Court § 32.1; see also,
e.g., Franceskin v. Credit Suisse, 214 F.3d 253, 256 n.1 (2d Cir. 2000) (“Here and elsewhere in
this opinion, we cite to cases decided by summary order solely to identify instances in which
diversity jurisdiction was improperly alleged in matters coming before this court. We cite them
only as facts rather than as precedents.”).

33