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 forthe 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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