     14-2447
     Toliver v. Department of Corrections


                             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 ASUMMARY 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 Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 24th day of June, two thousand fifteen.
 4
 5   PRESENT:
 6               JON O. NEWMAN,
 7               DENNIS JACOBS,
 8               GUIDO CALABRESI,
 9                     Circuit Judges.
10   _____________________________________
11
12   Michael Toliver,
13
14                               Plaintiff-Appellant,
15
16                      v.                                                   14-2447
17
18   New York City Department of Corrections, et al.,
19
20                               Defendants-Appellees.
21
22   _____________________________________
23
24   FOR PLAINTIFF-APPELLANT:                            Michael Toliver, pro se, Romulus,
25                                                       New York.
26
27   FOR DEFENDANTS-APPELLEES:                           Pamela Seider Dolgow, Janet L. Zaleon (for
28                                                       Zachary W. Carter, Corporation Counsel of
29                                                       the City of New York), New York, New
30                                                       York.
 1          Appeal from a judgment of the United States District Court for the Southern District of

 2   New York (Stein, J.).


 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 4   DECREED that the judgment of the district court is AFFIRMED.

 5          Appellant Michael Toliver, pro se, appeals the district court’s judgment dismissing this 42

 6   U.S.C. § 1983 action for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b).

 7   We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

 8   the issues on appeal.

 9          “We review a dismissal for failure to prosecute for abuse of discretion.” Lewis v. Rawson,

10   564 F.3d 569, 575 (2d Cir. 2009). Abuse of discretion occurs when the district court’s decision is

11   based “‘on an error of law (such as application of the wrong legal principle) or a clearly erroneous

12   factual finding,’ or when its ruling ‘cannot be located within the range of permissible decisions.’”

13   Id. (quoting Wynder v. McMahon, 360 F.3d 73, 76 (2d Cir. 2004)).      Although review for abuse of

14   discretion “suggests great deference,” “we have recognized that dismissal is a harsh remedy and is

15   appropriate only in extreme situations” and “that district courts should be especially hesitant to

16   dismiss for procedural deficiencies where, as here, the failure is by a pro se litigant.” Lucas v.

17   Miles, 84 F.3d 532, 535 (2d Cir. 1996).

18          In reviewing a Rule 41(b) dismissal, we consider whether: (1) the plaintiff’s failure to

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

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

21   (4) the need to alleviate court calendar congestion was carefully balanced against the plaintiff’s

22   right to an opportunity for a day in court; and (5) the court adequately assessed the efficacy of

23   lesser sanctions. Lewis, 564 F.3d at 576.

                                                      2
 1          The district court did not abuse its discretion when it dismissed this action for failure to

 2   prosecute. See Lewis, 564 F.3d at 576-77; cf. Lucas, 84 F.3d at 535-36. The district court

 3   analyzed the relevant factors and concluded that each one favored dismissal. After receiving

 4   several extensions of time to file a pretrial order, Toliver was clearly warned that failure to comply

 5   would result in dismissal. The district court did not clearly err in refusing to credit Toliver’s

 6   unsupported assertions of mail tampering. See Lewis, 564 F.3d at 575. Toliver was able to send

 7   mail to the district court about his alleged inability to send mail. The available inference is that

 8   Toliver never complied with the district court’s order to submit his pretrial order.

 9          Toliver claims that he sent the pretrial order and submitted, as proof, a receipt for postage

10   on May 1, 2014. Even assuming this argument is properly before this Court on appeal, the district

11   court docket sheet reflects that the mail Toliver sent to the district court on May 1, 2014 requested

12   an extension of time to submit the pretrial order. Toliver has submitted no other evidence that he

13   actually submitted the pretrial order, or that the district court’s factual findings were otherwise

14   clearly erroneous.

15          Accordingly, we AFFIRM the judgment of the district court.

16                                                  FOR THE COURT:
17                                                  Catherine O=Hagan Wolfe, Clerk




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