13‐1967‐pr
Headley v. Fisher et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL
EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER
JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE
32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED
WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 21st day of March, two thousand
4 fourteen.
5
6 PRESENT: CHESTER J. STRAUB,
7 ROBERT D. SACK,
8 RAYMOND J. LOHIER, JR.,
9 Circuit Judges.
10 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
11 ROGELIO HEADLEY,
12
13 Plaintiff‐Appellant,
14
15 v. No. 13‐1967‐pr
16
17 SUPERINTENDENT BRIAN FISHER, Sing Sing
18 Correctional Facility, CORRECTIONAL OFFICER
19 SIMPSON, CORRECTIONAL OFFICER B. ELLIS,
20 CORRECTIONAL OFFICER T. RIZZUTO,
21
22 Defendants‐Appellees.
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The Clerk of the Court is directed to amend the caption of this case as set forth
above.
1
1 FOR APPELLANT: Rogelio Headley, pro se, Panama City,
2 Panama.
3
4 FOR APPELLEES: Barbara D. Underwood, Solicitor General,
5 Michael S. Belohlavek, Senior Counsel,
6 Claude S. Platton, Assistant Solicitor
7 General, for Eric T. Schneiderman, Attorney
8 General of the State of New York, New
9 York, NY.
10
11 Appeal from an order of the United States District Court for the Southern
12 District of New York (Paul A. Crotty, Judge).
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
14 AND DECREED that the order of the District Court is AFFIRMED in part and
15 the appeal is DISMISSED in part.
16 Rogelio Headley, proceeding pro se, appeals from the District Court’s
17 dismissal of his action for failure to prosecute and the District Court’s partial
18 grants of defendants’ motions to dismiss and for summary judgment. We
19 assume the parties’ familiarity with the facts and record of the prior proceedings,
20 to which we refer only as necessary to explain our decision to affirm in part and
21 dismiss in part.
22 We review for abuse of discretion a district court’s decision to dismiss an
23 action for failure to prosecute, Lewis v. Rawson, 564 F.3d 569, 575 (2d Cir. 2009),
24 and in doing so we consider five factors:
25
26 whether[] (1) the plaintiff’s failure to prosecute caused a delay of
27 significant duration; (2) plaintiff was given notice that further delay
28 would result in dismissal; (3) defendant was likely to be prejudiced
29 by further delay; (4) the need to alleviate court calendar congestion
30 was carefully balanced against plaintiff’s right to an opportunity for
31 a day in court; and (5) the trial court adequately assessed the efficacy
32 of lesser sanctions.
2
1 United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004).
2 A district court is not required to discuss each factor on the record. Shannon v.
3 Gen. Elec. Co., 186 F.3d 186, 194 (2d Cir. 1999).
4 With these factors in mind, we conclude that the District Court did not
5 abuse its discretion when it dismissed Headley’s action for failure to prosecute,
6 and we accordingly affirm its order. The record demonstrates that (1) Headley’s
7 failure to prosecute resulted in a nearly year‐and‐a‐half delay from the originally
8 scheduled trial date, (2) Headley received notice that further delay could result in
9 dismissal, and (3) the District Court considered, but rejected, the alternative of
10 permitting Headley to appear by teleconference.
11 Headley also challenges the partial grants of defendants’ motions to
12 dismiss and for summary judgment. However, with exceptions not relevant
13 here, “interlocutory orders do not properly merge with a final judgment
14 dismissing an action for failure to prosecute.” Id. at 192. Therefore, we lack
15 jurisdiction to consider Headley’s arguments with respect to the District Court’s
16 interlocutory rulings.
17 We have considered Headley’s remaining arguments and conclude that
18 they are without merit. For the foregoing reasons, the order of the District Court
19 is AFFIRMED in part and the appeal is DISMISSED in part.
20 FOR THE COURT:
21 Catherine O=Hagan Wolfe, Clerk of Court
22
3