13‐3079
Baptiste v. Sommers
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2013
(Argued: June 18, 2014 Decided: September 24, 2014)
Docket No. 13‐3079‐cv
________________
HARRY R. BAPTISTE,
Plaintiff‐Appellant,
— v. —
DR. DIANE SOMMERS, Clinical Director, WARDEN at Otisville, FCI New York, DR.
M. WHITE, MD, ORANGE REGIONAL MEDICAL STAFF, Center Director,
Defendants‐Appellees,
JOHN DOE, JANE DOE,
Defendants.
B e f o r e:
CALABRESI, PARKER, and LYNCH, Circuit Judges.
__________________
Plaintiff‐Appellant Harry R. Baptiste appeals from a decision of the United
States District Court for the Southern District of New York (Alvin K. Hellerstein,
Judge) dismissing his case for failure to prosecute under Federal Rule of Civil
Procedure 41(b). The district court ruled that Baptiste had not provided an
adequate justification for his nearly two‐year delay in filing an amended
complaint, and had not proven that he had a meritorious and manageable case
going forward. We hold that dismissal exceeded the bounds of the court’s
discretion because the district court failed to apply the five‐factor balancing test
prescribed by our case law for assessing the propriety of Rule 41(b) dismissals.
VACATED AND REMANDED.
ROLAND G. OTTLEY, The Ottley Law Firm, PC, Brooklyn, New York, for
Plaintiff‐Appellant Harry R. Baptiste.
TOMOKO ONOZAWA, Assistant United States Attorney (Emily E.
Daughtry, Assistant United States Attorney, on the brief), for Preet
Bharara, United States Attorney for the Southern District of New York,
New York, New York, for Defendants‐Appellees Dr. Diane Sommers and
Warden at Otisville, FCI New York.
REBECCA B. MANTELLO, Catania, Mahon, Milligram, & Rider, PLLC,
Newburgh, New York, for Defendants‐Appellees Dr. M. White, MD, and
Orange Regional Medical Center Staff, Center Director.
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PER CURIAM:
This case requires us to decide whether a district court may dismiss a case
for failure to prosecute after a long and unexplained delay without evaluating all
the factors that we have deemed necessary to measure the consequences of such
delay. Because district courts must weigh the factors prescribed by our case law,
and because the court below failed to do so, we VACATE the district court’s
judgment dismissing the case for failure to prosecute and REMAND for further
proceedings consistent with this opinion.
BACKGROUND
In February 2009, Plaintiff‐Appellant Harry Baptiste filed a pro se
complaint alleging that he received inadequate medical care while imprisoned at
the federal corrections facility in Otisville, New York. Baptiste suffered from a
web of chronic conditions, all rooted in some form of lung disease. He was
initially diagnosed and treated in 2005 while he was incarcerated at Otisville.
Doctors retained by the Bureau of Prisons allegedly botched Baptiste’s diagnosis,
and drugs they prescribed may have exacerbated his symptoms. After Baptiste
learned of the alleged misdiagnosis, he sought to recover damages for his
suffering. Baptiste could not afford a lawyer and proceeded pro se.
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At first, Baptiste pursued his claims diligently: Before filing suit, he
exhausted his administrative remedies within the prescribed time limits. After
the defendants filed a motion to dismiss his federal court action, Baptiste filed a
timely response and moved to have counsel appointed. His responses slowed,
however, after the District Court for the Southern District of New York (Alvin K.
Hellerstein, Judge) granted the defendants’ motions in part. Baptiste had sued
one federal official, the warden of the prison where he was housed in 2005, and
three physicians who treated him, Dr. Diane Sommers, Dr. M. White, and the
Director of the Orange Regional Medical Center. The court dismissed all of
Baptiste’s claims save one – the allegation that Dr. Sommers was deliberately
indifferent to Baptiste’s medical needs when Sommers refused to order a biopsy
that would have led to an accurate diagnosis. The court also permitted Baptiste
to amend his complaint within sixty days, counseling that Baptiste could “assert
state law negligence or medical malpractice claims against Dr. White and the
Director [of the Orange Regional Medical Center]” and that he should “consult
with the Court’s Pro Se office for assistance in determining appropriate
amendments consistent with [the] Order.” The court issued its decision on
August 11, 2010. Baptiste did not file a proposed amended complaint until
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January 14, 2011, after an extension of time and a warning that no further
extensions would be granted.
Baptiste’s proposed amended complaint, however, was not a complaint.
The document, titled “Amended Complaint,” was a legal brief “intended to rebut
the allegations of the [defendants’] Answer.” The court directed the Clerk of
Court to return the submission. Baptiste did not respond with a properly pled
complaint. Indeed, twenty three months passed without any response at all.
On November 16, 2012, after almost two years of silence on the part of
Baptiste, the district court ordered Baptiste to show cause why his complaint
should not be dismissed. “In light of the absence of recent activity, it is hereby
ordered that Plaintiff shall show cause by December 10, 2012 why this action
should not be dismissed for failure to prosecute.” Citing Federal Rule of Civil
Procedure 41(b), the court warned that “[i]f Plaintiff [did] not show good cause
by December 10, 2012, the Clerk shall, on December 17, 2012, mark the case
closed.”
On December 10, 2012, Baptiste, now represented by counsel, filed an
affirmation responding to the district court’s order to show cause. Baptiste
explained that he had only recently retained a lawyer, and that his worsening
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medical condition and treatment “ha[d] . . . prevent[ed him] from getting
around.” Baptiste asked to be allowed to file an amended complaint and
continue the action.
With Baptiste’s initial explanation in hand, the court delayed any “ruling
on the appropriateness of dismissal,” and ordered Baptiste’s counsel to submit a
“a memorandum showing good faith merit against particular defendants, and a
plan for completing all necessary proceedings within 60 days.” The court gave
Baptiste’s counsel just over a month to complete the task, and later granted an
extension of 30 additional days. Counsel submitted a lengthy brief on the
deadline date outlining the basis for Baptiste’s claims against each defendant,
and indicating that both he and the government’s attorney believed that sixty
days was too short a time to file an amended pleading and complete discovery.
(The government confirmed its agreement in its response, although it then
reached the rather ungenerous conclusion that the case should be dismissed
because Baptiste had “failed to satisfy – and [could not] satisfy – the requirement
. . . [that he] present a plan” to do the admittedly impossible).
The district court thus received two responsive filings triggered by its
order to show cause: the December letter explaining that Baptiste had only
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recently obtained counsel and that he had been sick and immobilized for some
period of time, and a longer legal brief in February outlining the basis for his
claims and his inability to produce a plan to complete discovery in sixty days.
The district court, however, focused solely on the second filing. “On December
21, 2012, I ordered Plaintiff to show good cause why his action should not be
dismissed for failure to prosecute,” the court noted without referencing its initial
November order or Baptiste’s early December response. The court then
dismissed his case for failure to prosecute:
Plaintiff has not shown good cause why his case should
not be dismissed for failure to prosecute. Having
retained an attorney, Plaintiff responds with a
submission that does not offer a plan to complete
proceedings within sixty days as ordered or, for that
matter, any other period of time, and offers no
explanation for Plaintiff’s nearly two‐year failure to
prosecute his claims. Instead, Plaintiff seeks to relitigate
dismissed claims and assert entirely new claims.
The court ordered the case closed. This timely appeal followed.
DISCUSSION
I. Standard of Review
Rule 41(b) of the Federal Rules of Civil Procedure authorizes the district
court to dismiss an action “[i]f the plaintiff fails to prosecute or to comply with
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[the] rules or a court order.” A district court considering a Rule 41(b) dismissal
must weigh five factors: “(1) the duration of the plaintiff’s failure to comply
with the court order, (2) whether plaintiff was on notice that failure to comply
would result in dismissal, (3) whether the defendants are likely to be prejudiced
by further delay in the proceedings, (4) a balancing of the court’s interest in
managing its docket with the plaintiff’s interest in receiving a fair chance to be
heard, and (5) whether the judge has adequately considered a sanction less
drastic than dismissal.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). No
single factor is generally dispositive. Nita v. Connecticut Dep’t of Envtl. Prot.,
16 F.3d 482, 485 (2d Cir. 1994).
We review a court’s dismissal under Rule 41(b) for an abuse of discretion
in light of the record as a whole. Alvarez v. Simmons Mkt. Research Bureau,
Inc., 839 F.2d 930, 932 (2d Cir. 1988). Our review is mindful, however, that such
dismissals are “the harshest of sanctions” and we insist that dismissal “be
proceeded by particular procedural prerequisites,” including “notice of the
sanctionable conduct, the standard by which it will be assessed, and an
opportunity to be heard.” Mitchell v. Lyons Prof’l Servs., Inc., 708 F.3d 463, 467
(2d Cir. 2013) (collecting cases). Finally, because the sanction of dismissal with
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prejudice “has harsh consequences for clients, who may be blameless,” we have
instructed that “it should be used only in extreme situations.” Id. (internal
quotation marks and citations omitted). We have similarly indicated that a pro
se litigant’s claim should be dismissed for failure to prosecute “only when the
circumstances are sufficiently extreme.” LeSane v. Hall’s Sec. Analyst, Inc., 239
F.3d 206, 209 (2d Cir. 2001) (internal quotation marks omitted).
II. Adequacy of the District Court’s Reasoning
If the district court weighed the factors dictated by our case law before it
dismissed Baptiste’s case, its order does not disclose its deliberative path. As in
LeSane, the “record contains no indication that the district court considered any
of [the required] factors in reaching its decision to dismiss plaintiff’s case for
failure to prosecute.” Id. at 209. We do not expect district courts to make
exhaustive factual findings or to utter what, in the sentencing context, we have
called “robotic incantations.” United States v. Crosby, 397 F.3d 103, 113 (2d Cir.
2005). But just as we require a court to “explain enough about [a] sentence for a
reviewing court both to understand it and to assure itself that the judge
considered the [relevant law]” United States v. Corsey, 723 F.3d 366, 374 (2d Cir.
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2013), “a decision to dismiss stands a better chance on appeal if the appellate
court has the benefit of the district court’s reasoning,” Lucas, 84 F.3d at 535.
The district court’s order does not refer to any of the factors relevant to a
Rule 41(b) dismissal. Instead, the court dismissed the case because it was
unpersuaded that Baptiste had a meritorious case or that he had a good reason
for his past delay. A failure “to show cause” as to those two factors, however, is
not a substitute for assessing the appropriateness of dismissal by balancing the
prescribed criteria: the duration of the plaintiff’s failure, the nature and timing of
the court’s notice to the plaintiff of possible dismissal, any prejudice to the
defendant, the court’s own interest in managing its docket, and the possibility of
imposing a lesser sanction. As we explained in Mitchell, even when a court
issues a notice of a possible dismissal and a plaintiff fails to comply with the
court’s directive, the court must still make a finding of “willfulness, bad faith, or
reasonably serious fault” by evaluating those criteria. 708 F.3d at 467. Given the
court’s silence, we can only assume that the district court overlooked that
requirement, and we therefore cannot say that its decision to dismiss was a
reasonable one.
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III. Propriety of Dismissal
As we have done in other cases, “[w]e now do the factor analysis the
district court should have done.” Lucas, 84 F.3d at 535. See also LeSane, 239
F.3d at 209‐10 (holding that district court did not adequately weigh Rule 41(b)
factors and then “perform[ing] the analysis the district court did not expressly
make”). In our view, none strongly favors dismissal.
First, although Baptiste’s delay of almost two years in amending his
complaint was excessive, the delay appears to have resulted from his illness and
pro se status. After he obtained counsel, Baptiste complied with each of the
court’s demands in a timely fashion. The dramatic shift from incommunicado to
responsive, attendant on a chronically ill pro se litigant’s retention of counsel,
supports Baptiste’s claim that his failure to act while representing himself was
the product of his own incapacities, and assuages any concern about future
delays.
Second, the district court’s orders did not provide clear guidance on how
Baptiste could avoid dismissal. We note at the outset that the plaintiff’s long
period of inaction preceded any warning about the consequences of delay. Once
the court issued a warning of potential dismissal, Baptiste and his counsel
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responded in a timely fashion to all court orders. Like the order in LeSane, the
district court’s November 2012 Order to Show Cause was “brief and technical,”
239 F. 3d at 210, warning only that “Plaintiff shall show cause . . . why this action
should not be dismissed for failure to prosecute.” Baptiste did not have counsel
when he received the notice, and might not have understood what would
constitute “cause” or “failure to prosecute,” or what evidence he should amass
to support his excuse.
The court’s subsequent order, directed to Baptiste’s counsel, was also
unclear. The court acknowledged that Baptiste’s initial December 2010 response
had laid the beginnings of an explanation; the court referred to the filing and
delayed “ruling on the appropriateness of dismissal.” It then requested further
information, none of which related to the past delay. Rather, the court ordered
counsel to show “good faith merit against particular defendants,” and provide
“a plan for completing all necessary proceedings within 60 days.” But when the
court dismissed Baptiste’s case months later, it chastised Baptiste’s counsel for
failing to “offer [an] explanation for Plaintiff’s nearly two‐year failure to
prosecute his claims.” Perhaps the court meant to criticize the tentative
statements describing Baptiste’s reasons for delay in his initial affirmation in
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early December. But if that is the case, it is unclear when the court expected
counsel to provide the missing corroborating evidence and more detailed
explanation that the court required. Counsel complied with the letter of the
court’s December 2012 order, and cannot be faulted for failing to divine that the
court also required information it did not request.1
Third, defendants have not pointed to any concrete way that they have
suffered or will suffer prejudice due to Baptiste’s delay. Both argue that, in the
words of the federal defendants, the delay has “increased the likelihood that
evidence in support of . . . [their] defenses may be unavailable,” but do not
identify specific pieces of evidence that they have reason to believe have
disappeared, nor do they specify which of their defenses might be compromised.
Nothing in the record suggests any such prejudice.
Fourth, the court did not indicate, nor do we have to reason to believe,
that Baptiste’s case strained its docket in any unusual way. Although the case
stalled for two years, “plaintiff’s failure to prosecute in this case was silent and
1
Moreover, as even the government acknowledged, the court’s deadline of
sixty days not only to conduct discovery but to fully dispose of the case
(presumably including potential summary judgment motions and trial) was
unrealistic, so that counsel’s failure to produce such a plan cannot be a basis for
dismissal.
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unobtrusive rather than vexatious and burdensome: plaintiff simply did not
make submissions required by the court; he did not swamp the court with
irrelevant or obstructionist filings.” Le Sane, 239 F.3d at 210. As we have
explained, “[t]here must be compelling evidence of an extreme effect on court
congestion before a litigant’s right to be heard is subrogated to the convenience
of the court.” Lucas, 84 F.3d at 535‐36.
Fifth, the district court has the means to move this case forward efficiently
without the cudgel of extreme sanctions. The court has the power to set and
enforce reasonable deadlines for discovery and motion practice. If Baptiste
seeks to “relitigate dismissed claims,” the court can reject those claims in a short
order referencing its prior decision.2 If Baptiste seeks to “assert entirely new
claims,” the court can address the merits of any motion to amend the complaint.
2
We express no view on the merits of the district court’s prior rulings on
defendants’ motion to dismiss as we do not have jurisdiction to review it at this
time. See Palmieri v. Defaria, 88 F.3d 136, 139 (2d Cir. 1996) (explaining that
allowing a dismissal for failure to prosecute to merge with court’s prior
substantive orders would result in a perverse incentive to bypass the finality rule
embodied in 28 U.S.C. § 1291). We note, however, that while Baptiste may seek
appellate review of those rulings after the district court enters an eventual final
judgment, he remains bound by them at this time. Counsel’s efforts to resist
those rulings, rather than to chart a course forward that complied with them,
understandably irritated the district court, and may have contributed to the
decision to dismiss the case.
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And the court may take into account the consequences of plaintiff’s long delay
as it addresses any such motion and schedules and oversees discovery.
In sum, the district court has substantial power to ensure that the case
proceeds swiftly through discovery to disposition, and to prevent any prejudice
to defendants from plaintiff’s past delays. This is not an “extreme situation[]”
that can only be remedied with the “the harshest of sanctions.” Mitchell, 708
F.3d at 467. Thus, we conclude not only that the district court’s failure to
address the prescribed factors was error, but also that, had the district court
performed the required analysis, it would not have dismissed the case.
CONCLUSION
For the foregoing reasons, the judgment of the district court is VACATED
and we REMAND the case for further proceedings consistent with this opinion.
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