17-1043-cv
Jefferson v. Webber 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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 18th day of June, two thousand nineteen.

PRESENT: GUIDO CALABRESI
           CHRISTOPHER F. DRONEY,
                       Circuit Judges,
           STEFAN R. UNDERHILL,
                       Chief District Judge.
______________________________________________

KEVIN L. JEFFERSON,
                                  Plaintiff-Appellant,

                             v.                                                    No. 17-1043-cv

EDWARD WEBBER, Commissioner, SERGEANT RENE
GARCIA, POLICE OFFICER CHRISTOPHER VERWYS,
POLICE OFFICER MIGUEL VIAS, POLICE OFFICER GLEN
DALEO, POLICE OFFICER JESSICA VITALE, and COUNTY
OF SUFFOLK,

                      Defendants-Appellees.
______________________________________________




 Chief Judge Stefan R. Underhill, United States District Court for the District of Connecticut, sitting by
designation.



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    FOR APPELLANT:                                        AMANDA RAVICH (Noam Biale on the
                                                          brief), Sher Tremonte LLP, New York, NY

    FOR APPELLEES:                                        BRIAN C. MITCHELL, Assistant County
                                                          Attorney, for Dennis M. Brown, Suffolk
                                                          County Attorney, Hauppauge, NY

      Appeal from a judgment of the United States District Court for the Eastern District
of New York (Seybert, J.; Lindsay, M.J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the May 23, 2016 order imposing a monetary sanction and the
judgment of the district court dismissing the case are VACATED and the cause is
REMANDED for further proceedings.

        On October 8, 2013, Plaintiff-Appellant Kevin Jefferson, acting pro se, filed this
action in the Eastern District of New York against the Suffolk County Police
Commissioner, five named and unnamed police officers, and the County of Suffolk,
(collectively “the County”) alleging a claim under 42 U.S.C. § 1983 arising out of his
arrest.1 At the same time, he also filed a motion for leave to proceed in forma pauperis,
which was granted.

        From its commencement in October 2013, until the initial pretrial conference in
April 2015, the case moved slowly. The district court directed the County to identify the
unnamed defendants by February 13, 2014. Six days late, on February 19, the County
requested an extension of sixty days to respond to the court’s order and to answer the
complaint. The court granted the motion and ordered the County to serve the response
and answer the complaint by April 22, 2014. On May 8, sixteen days late, the County
filed the response and answer.

       On September 22, 2014, Jefferson filed a motion for a status conference, to which
the court did not respond. More than four months later on February 4, 2015, Jefferson
renewed his request for a status conference. The court then held the first status
conference on April 10, 2015, after which it referred the case to Magistrate Judge
Lindsay for discovery. Following the conference, the magistrate judge issued a
scheduling order setting the final pretrial conference for January 26, 2016, and ordering
the parties to file a proposed joint pretrial order before the conference.2



1
  Jefferson is a serial litigant, having filed at least nineteen lawsuits in the Eastern District of New York
since 1994.
2
  The proposed joint pretrial order was to consist of, among other things, a joint statement as to the
claims and defenses to be tried, the proposed number of trial days, a schedule of exhibits to be offered in


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      Neither party submitted a proposed pretrial order before the January 26 pretrial
conference. Jefferson also failed to appear at the conference. The magistrate judge
ordered Jefferson to show cause why the case should not be dismissed for lack of
prosecution, rescheduled the conference for February 18, and warned Jefferson that
another non-appearance could result in dismissal for failure to prosecute.

       Jefferson timely responded to the order to show cause, explaining that he failed to
appear at the conference because he lost his cellular telephone and, with it, the
information in his scheduling application, including the date of the conference. Jefferson
appeared for the rescheduled February conference, at which the magistrate judge ordered
the parties to submit any dispositive motions by March 21 and a proposed joint pretrial
order by April 22.

       On March 28, one week after the deadline for doing so, the County served
Jefferson with a statement of material facts in support of a proposed motion for summary
judgment, pursuant to the individual motion practice rules of the district court.

       On April 22, the County filed its portion of the proposed joint pretrial order, but
Jefferson failed to file his portion of the order. On April 27, the magistrate judge issued
an electronic order stating that it would give Jefferson “one final opportunity” to serve
and file his portion of the proposed joint pretrial order by May 13. App’x 4.

       On the deadline of May 13, the County prematurely filed a motion requesting that
the magistrate judge recommend that the matter be dismissed with prejudice on the
ground that Jefferson had not filed his portion of the proposed pretrial order. Later that
day, the clerk docketed Jefferson’s motion requesting an extension for filing his portion
of the proposed pretrial order.

        On May 23, the magistrate judge extended the deadline for filing the proposed
pretrial order to June 3, but warned that she would recommend dismissal if Jefferson did
not meet the deadline. The magistrate judge also denied the County’s motion to dismiss
but sua sponte ordered Jefferson to reimburse the County for its cost of preparing the
motion. The magistrate judge later approved the County’s request for reimbursement in
the amount of $300. Neither the order imposing the sanction nor the order approving the
amount of the sanction informed Jefferson of his right to object to the sanction.

        On June 3, Jefferson timely filed his portion of the proposed pretrial order with the
district court. Jefferson claimed that he did not serve the order by mail that day because
he did “not have the necessary funds,” but intended to do so the following day on June 4.
App’x 77.


evidence and expected objections to those exhibits, and a list of witnesses expected to provide testimony
and a brief summary of their expected testimony.



                                                    3
       The County moved to dismiss the action two additional times because it allegedly
never received Jefferson’s pretrial order by mail and Jefferson failed to pay the $300
sanction. Jefferson does not dispute that he did not pay the sanction, which he contends
he cannot afford, but he claims that he mailed the order on June 4, as he previously stated
he would. In any event, the order was available to defense counsel on June 3 through the
court’s online filing system.

        On August 10, the magistrate judge issued a report and recommendation
recommending that the case be dismissed with prejudice based on Jefferson’s failure to
pay the $300 sanction and to timely serve by mail his portion of the proposed pretrial
order. Unlike the order imposing the sanction, the report and recommendation informed
Jefferson that he had a right to object. Jefferson timely objected to the report and
recommendation. He also objected to the imposition of the monetary sanction, although
the deadline for objecting to the sanction order had passed. In his objections, Jefferson
stated that he was unemployed and that his sole income was a monthly governmental
benefit of $183.00.

        On February 24, 2017, the district court adopted the report and recommendation in
its entirety and dismissed the case. The court also denied Jefferson’s request to vacate
the $300 sanction because he had failed to timely object to that order.

                                              I.

        On appeal, Jefferson contends that the district court abused its discretion by failing
to adequately consider the factors required to dismiss the action. We review a district
court’s decision to dismiss a case for failure to prosecute for “abuse of discretion in light
of the record as a whole.” Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (per
curiam). Abuse of discretion review generally “suggests great deference”; however, our
cases recognize that dismissal for failure to prosecute is “a harsh remedy and is
appropriate only in extreme situations.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996).
We review the court’s decision also mindful of the fact that “pro se plaintiffs should be
granted special leniency regarding procedural matters.” LeSane v. Hall’s Sec. Analyst,
Inc., 239 F.3d 206, 209 (2d Cir. 2001); see also Lucas, 84 F.3d at 535 (“[D]istrict courts
should be especially hesitant to dismiss for procedural deficiencies where . . . the failure
is by a pro se litigant.”).

       In evaluating a motion to dismiss for failure to prosecute under Fed. R. Civ. P.
41(b), a district court must weigh five factors:

       (1) the duration of the plaintiff’s failure to comply with the court order, (2)
       whether [the] 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,


                                              4
       and (5) whether the judge has adequately considered a sanction less drastic
       than dismissal.

Baptiste, 768 F.3d at 216 (quoting Lucas, 84 F.3d at 535). “No 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 248, 254 (2d Cir. 2004).

        Here, the court extended the deadline for Jefferson to file his portion of the joint
pretrial order on three occasions, from January 26 to April 22, then to May 13, then to
June 3, upon which date Jefferson filed his portion of the order. The County missed the
January deadline and did not submit its portion of the order until April 22. Therefore, the
delay in proceedings attributable solely to Jefferson was 42 days, from April 22 to June 3.
See Jackson v. City of New York, 22 F.3d 71, 75 (2d Cir. 1994) (refusing to attribute
solely to plaintiff delays in proceedings that were “as much the defendants’ fault as they
were [the sanctioned plaintiff’s]”). In pro se cases, this Court has found that similar
delays of 39 days, Lucas, 84 F.3d at 535, and one month, LeSane, 239 F.3d at 210, were
insufficient to justify dismissal for failure to prosecute.

        We must also consider Jefferson’s delay in light of the record as a whole,
including the extent to which the County and the district court contributed to delays in the
proceedings. See United States ex rel. Drake, 375 F.3d at 258 (finding that a seventeen-
month delay did not justify dismissal where case was delayed multiple times for reasons
not attributable to plaintiff). The County was six days late in requesting an extension to
respond to the court’s order to identify the unnamed defendants, sixteen days late in filing
the response and answer (for which it had received a sixty-day extension), and seven days
late in serving its statement of material facts to commence summary judgment
proceedings. It also took the district court many months to schedule an initial status
conference after Jefferson requested one. Thus, particularly in light of the overall pace
of the case, the 42-day delay caused by Jefferson was insufficiently extreme to weigh in
favor of the “harsh remedy” of dismissal. Lucas, 84 F.3d at 535.

        As to the other four factors, the multiple warnings issued by the magistrate judge
weigh in favor of dismissal. But that factor is not dispositive, see LeSane, 239 F.3d at
210–11, and the remaining factors all weigh against dismissal. The County argues that
the passage of time hindered its ability to conduct discovery. However, the County’s
own noncompliance and requests for extensions undermine its claim of prejudice. In
addition, the delay caused by Jefferson does not rise to the level of causing an “extreme
effect on court congestion” that would justify the subrogation of his “right to be heard . . .
to the convenience of the court.” Lucas, 84 F.3d at 535–36. Finally, the court did not
adequately consider lesser sanctions. The magistrate judge did not consider or impose
any non-monetary sanction before dismissing the action, despite the fact that Jefferson
was proceeding in forma pauperis and is indigent. A party’s inability to pay a sanction
because of indigency “must weigh heavily against a dismissal for failure to do so.”
Selletti v. Carey, 173 F.3d 104, 112 (2d Cir. 1999).

                                              5
        In sum, four out of the five factors weigh considerably against dismissal.
Moreover, the record reflects that “this is not a case in which the plaintiff ‘deliberately
proceeded in dilatory fashion.’” United States ex rel. Drake, 375 F.3d at 258 (quoting
Link v. Wabash R. Co., 370 U.S. 626, 633 (1962)) (alterations omitted). Instead, it
reflects a case that was delayed by both sides. Viewing the balance of factors in light of
the considerable leeway afforded pro se litigants on procedural matters, the district court
should not have dismissed the action for failure to prosecute.

                                                   II.

       Jefferson next contends that the magistrate judge abused her discretion in
imposing a $300 sanction after Jefferson requested and received an extension to file his
portion of the proposed joint pretrial order. Although Jefferson failed to timely object to
that sanction, this Court may excuse the waiver “in the interests of justice.” Spence v.
Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000). The
Court’s decision to excuse such a waiver is informed by, among other things, “whether
the defaulted argument has substantial merit or, put otherwise, whether the magistrate
judge committed plain error.” Id.

       The magistrate judge plainly erred in imposing the $300 sanction because she did
not specify the legal authority under which she acted. See Sakon v. Andreo, 119 F.3d
109, 113 (2d Cir. 1997) (“Because the various sources of the court’s authority [to impose
sanctions] are governed by differing standards, it is imperative that the court explain its
sanctions order ‘with care, specificity, and attention to the sources of its power.’”)
(quoting MacDraw, Inc. v. CIT Grp. Equipment Fin., Inc., 73 F.3d 1253, 1262 (2d Cir.
1996)) (internal citation omitted). Instead, the sanction order stated only that the
magistrate judge would not “countenance [Jefferson’s] conduct” of waiting until the day
the pretrial order was due to request an extension for filing it. App’x 68. The magistrate
judge acted sua sponte in imposing that sanction, so the issue was not briefed or argued.
Due process requires that a litigant “must be forewarned of the authority under which
sanctions are being considered, and given a chance to defend himself against specific
charges.” Sakon, 119 F.3d at 114 (quoting Ted Lapidus, S.A. v. Vann, 112 F.3d 91, 97
(2d Cir. 1997)).

        Moreover, we can discern no legal authority under which the magistrate judge
could have imposed the monetary sanction under the circumstances.3 Jefferson did not
violate any rule or court order in filing a motion for extension of the deadline. Rather,
the sanction order required him to reimburse the County for preparing a motion that was
filed prematurely.

3
  Neither does the County point us to any legal authority under which the magistrate judge could have
permissibly imposed the monetary sanction. Instead, it argues that the fact that Jefferson is a “self-
admitted pan-handler” suggests that he has the means to pay the sanction. Appellee’s Br. 19.



                                                    6
       Accordingly, the imposition of a monetary sanction in the May 23, 2016 order was
the result of plain error. We exercise our discretion to excuse Jefferson’s waiver of his
objections to that order and vacate the sanction.

                                         * * *

       We have considered the County’s remaining arguments and find them to be
without merit. Accordingly, the May 23, 2016 order imposing a monetary sanction and
the judgment of the district court dismissing the case are VACATED and the cause is
REMANDED for further proceedings.
                                         FOR THE COURT:
                                         Catherine O’Hagan Wolfe, Clerk of Court




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