08-4433-pr
West v. Goord

                   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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 27th day of May, two thousand eleven.

PRESENT:    JOHN M. WALKER, JR.,
            BARRINGTON D. PARKER,
            DENNY CHIN,
                           Circuit Judges.

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JAMES M. WEST,
          Plaintiff-Appellant,

            -v.-                                          08-4433-pr

GLENN S. GOORD, et al.,
          Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT:              SARAH P. KENNEY (Douglas F. Broder,
                                      on the brief), K&L Gates LLP, New
                                      York, NY.

FOR DEFENDANTS-APPELLEES:             MARTIN A. HOTVET, Assistant
                                      Solicitor General (Eric T.
                                      Schneiderman, Attorney General,
                                      Andrea Oser, Deputy Solicitor
                                      General, and Barbara D. Underwood,
                                      Solicitor General, on the brief),
                                      Office of the Attorney General for
                                      the State of New York, Albany, NY.
            Appeal from a judgment of the United States District

Court for the Western District of New York (Arcara, Ch. J.)

entered August 15, 2008, dismissing the action "for plaintiff's

failure to prosecute."
            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment is VACATED and the case is

REMANDED.

            We assume the parties' familiarity with the facts,

procedural history, and issues on appeal.

            Defendant-appellant James West, an inmate at Five

Points Correctional Facility in Romulus, New York, commenced this

action below, pro se, against certain New York State correctional

officials pursuant to, inter alia, 42 U.S.C. §§ 1983, 1985, and
1986, and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.

West filed a 58-page complaint.    On October 31, 2005, the

district court (Elfvin, J.) sua sponte dismissed the complaint,

granting West leave to file an amended complaint, not to exceed

fifteen pages in length, within thirty days.    West filed an

amended complaint, within the page limit, on January 9, 2006.

            Defendants moved to dismiss the amended complaint or

for a more definite statement.     On September 26, 2007, the

district court granted the motion to the extent it sought a more

definite statement.    West filed a second amended complaint, also

limited to fifteen pages, on November 20, 2007.

            On November 29, 2007, defendants moved to strike the

second amended complaint pursuant to Fed. R. Civ. P. 12(f) and to


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dismiss it pursuant to Fed. R. Civ. P. 12(e).    On December 6,

2007, the district court (Scott, Mag. J.) ordered West to respond

to the motion by January 4, 2008.     The order warned West that the

complaint "may" be dismissed for failure to prosecute if he

failed to respond to the motion.    The order also, however,

attached a notice, pursuant to Irby v. New York City Transit

Authority, 262 F.3d 412 (2d Cir. 2001), providing detailed

instructions on how to oppose a motion for summary judgment (the

"Irby Notice").   The Irby Notice instructed West to submit

affidavits and other admissible evidence.

          West sought an extension of time until April 14, 2008

to oppose defendants' motion.   West referred to the Irby Notice
and stated that he was "perplexed or puzzled" by the court's

scheduling order.   The district court (Scott, Mag. J.) granted

the extension, setting February 22, 2008 as the deadline for West

to oppose defendants' motion to dismiss; it again attached an

Irby Notice to its order.

          West did not meet the February 22, 2008 deadline.    On

April 24, 2008, the magistrate judge issued a report and

recommendation recommending that the case be dismissed for lack

of prosecution (the "R&R").   The R&R concluded:   "The plaintiff

has clearly ceased to take any steps to prosecute this case."

Within the ten-day period for objecting to the R&R, West

requested an extension of time, without specifying whether he was

seeking an extension to object to the R&R or to oppose

defendants' motion.   The district court treated the request as


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one for an extension of time to object to the R&R, and granted it

until June 5, 2008.

          On June 4, 2008, West filed a memorandum of law and

affidavit (with exhibits) opposing defendants' motion to dismiss.

As directed in the Irby Notices, West responded to defendants'

motion to dismiss as if it were a motion for summary judgment.

          On August 14, 2008, the district court issued an order

adopting the R&R.     The district court concluded:

          Upon a de novo review of the [R&R], and after
          reviewing the submissions of the parties, the
          Court adopts the proposed findings of the
          [R&R]. Plaintiff's objections address only
          the merits of his case and do not provide any
          acceptable justification for failing to file
          a response to defendants' motion to dismiss
          the second amended complaint.

          This appeal followed, and West was assigned counsel for

the appeal.

          Dismissal of a pro se complaint for failure to

prosecute is a "harsh remedy" that should be utilized only in

"extreme situations."    LeSane v. Hall's Sec. Analyst, Inc., 239

F.3d 206, 209 (2d Cir. 2001) (internal quotation marks omitted);
accord Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)
("[D]eference is due to the district court's decision to dismiss

a pro se litigant's complaint only when the circumstances are

sufficiently extreme.").

          We review a district court's dismissal of an action for

failure to prosecute for abuse of discretion.      Lewis v. Rawson,

564 F.3d 569, 575 (2d Cir. 2009).       In conducting this review, we

focus on "whether: (1) the plaintiff's failure to prosecute


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caused a delay of significant duration; (2) plaintiff was given

notice that further delay would result in dismissal; (3)

[defendants were] likely to be prejudiced by further delay; (4)

the need to alleviate court calendar congestion was carefully

balanced against plaintiff's right to an opportunity for a day in

court; and (5) the trial court adequately assessed the efficacy

of lesser sanctions."   Ruzsa v. Rubenstein & Sendy Att'ys at Law,

520 F.3d 176, 177 (2d Cir. 2008) (per curiam) (internal quotation

marks omitted).   No one factor is dispositive, and 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).    While a district court is not required to discuss each of

the factors explicitly, "a decision to dismiss stands a better

chance on appeal if the appellate court has the benefit of the

district court's reasoning."   See Martens v. Thomann, 273 F.3d

159, 180 (2d Cir. 2001) (internal quotation marks omitted).

           We conclude that here the district court abused its

discretion.   The district court did not discuss all five factors.

We consider them now.

           First, the delay was approximately three-and-a-half

months.   The deadline was February 22, 2008, and West did not

submit his opposition until June 4, 2008.   This was, however, the

first time that West had missed a deadline, and some of the delay

was undoubtedly due to confusion caused by the district court's

twice sending West an Irby Notice directing him to respond as if
defendants had moved for summary judgment when they had moved

only to dismiss or for a more definite statement.    Under the

circumstances, the delay was not of "significant duration."

                                 -5-
          Second, although the magistrate judge's December 6,

2007 order did give notice that "the complaint may be dismissed"

if West failed to respond to the motion, the notice was brief and

equivocal and, again, was combined with the confusing Irby

Notice.

          Third, defendants have not alleged that they were

prejudiced by the delay.

          Fourth, the district court did not balance the need to

alleviate court calendar congestion against West's right to an

opportunity to be heard, and nothing in the record suggests that

such a balancing would have weighed in favor of dismissal.

          Finally, the district court did not discuss the

efficacy of lesser sanctions.   The record shows that West had

been actively pursuing his claims, and that he eventually

opposed, albeit belatedly, defendants' motion to dismiss.    The

magistrate judge's finding, adopted by the district court, that

"plaintiff has clearly ceased to take any steps to prosecute this

case" was wrong.

          Weighing the five factors and all the circumstances of

the case, we conclude that West's delay in opposing defendants'

motion to dismiss was not so "extreme" as to warrant the "harsh

remedy" of dismissal for failure to prosecute.   On remand, the

district court may want to consider defendants' motion to dismiss

or strike the second amended complaint on the merits, based on

the parties' submissions.




                                -6-
          Accordingly, the judgment of the district court

dismissing the second amended complaint for failure to prosecute

is VACATED, and the case is REMANDED to the district court for

further proceedings.

                         FOR THE COURT:
                         CATHERINE O’HAGAN WOLFE, CLERK




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