Perry v. The United States of America et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
RANSFORD PERRY,
Plaintiff,
-v- 	1:22-CV-1015 (AJB/DJS)
THE UNITED STATES OF AMERICA,
Defendant.
_____________________________________
Hon. Anthony Brindisi, U.S. District Judge:
DECISION and ORDER
On September 27, 2022, plaintiff Ransford Perry (“plaintiff”) filed this civil action against
defendant United States of America (“defendant”) and the United States Postal Service (“Postal
Service”) pursuant to the Federal Tort Claims Act (“FTCA”). 	Plaintiff’s one-count complaint
asserted a claim for negligence based on a slip and fall that plaintiff suffered when he entered a
Postal Service building in Albany, New York. Dkt. No. 1.
The matter was initially assigned to U.S. District Judge Mae A. D’Agostino, who referred
the case to the assigned magistrate judge for pre-trial supervision. Initially, however, the parties
did not need much in the way of oversight: defendant answered the complaint, Dkt. No. 9, the
parties stipulated to the dismissal of the Postal Service as a named defendant, Dkt. No. 10, and
then they promptly selected a mediator, Dkt. No. 18.
But the case soon ground to a halt. 	See, e.g., Dkt. No. 21. 	After receiving a series of
extensions to the pre-trial deadlines, Dkt. Nos. 24, 26, 27, plaintiff’s counsel moved to withdraw.
Dkt. Nos. 28, 29. There, plaintiff’s counsel explained that, during the pendency of this litigation,
his client had been charged and convicted of a crime and sentenced to a period of imprisonment.
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See Dkt. No. 28. Plaintiff’s counsel further explained that, aside from the difficulties in commu-
nication posed by his client’s detention, recent communications with his client had made it “clear
that there are irreconcilable differences between the firm and Plaintiff regarding the prosecution
of this action.” Id. ¶ 9.
On October 8, 2024, U.S. Magistrate Judge Daniel J. Stewart held a telephone conference
with plaintiff and his counsel in an attempt to resolve the representation issue. Dkt. No. 30. The
record shows that the hearing did not go particularly well:
TEXT ORDER: Plaintiff’s counsel filed a Motion with the Court to
withdraw from the case. Dkt. No. 28. The Court set the matter down
for a hearing with Plaintiff and Plaintiff’s counsel to discuss the Mo-
tion. The Court made arrangements to communicate with Plaintiff
at the facility where he is presently incarcerated. Upon being con-
nected to the conference, however, the staff in charge of supervising
Plaintiff advised the Court that Mr. Perry was maintaining that he
was deaf, and therefore could not participate. At various times dur-
ing the conference the Court directed questions at the Plaintiff, who
generally responded with I can’t hear you. The Court therefore ad-
journed the conference.
Text Minute Entry at 10/10/24.
After this telephone conference proved unproductive, Judge Stewart took a different tack.
He gave plaintiff fourteen days in which to file a letter indicating whether or not he objected to his
counsel’s withdrawal from the case. Dkt. No. 31. He also requested that plaintiff “supply to the
Court any documentation which he has to support his claim that he is deaf.” Id.
Thereafter, plaintiff indicated that he consented to his counsel’s withdrawal. Dkt. No. 35.
Accordingly, Judge Stewart granted the motion to withdraw and sua sponte stayed this matter for
sixty days to give plaintiff a chance to retain new counsel. Dkt. No. 36. The matter was reassigned
to this Court but remained referred to Judge Stewart for pre-trial supervision. Dkt. No. 45.
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On January 15, 2025, the sixty-day period expired without the appearance of new counsel
on plaintiff’s behalf. See Dkt. No. 36. Plaintiff, proceeding pro se, asked Judge Stewart for more
time to gather paperwork related to his case and to try to retain counsel. 	Dkt. No. 47. 	Judge
Stewart obliged, further extending the discovery deadlines. Dkt. No. 49. Judge Stewart also set a
telephone status conference to try to get discovery back on track, but it had to be adjourned due to
difficulties connecting with plaintiff. See Text Minute Entry at 3/20/25. Judge Stewart re-noticed
the telephone status conference for a later date, Dkt. Nos. 52, 53, but the mailing to plaintiff about
that conference was returned as undeliverable, Dkt. No. 56.
On May 22, 2025, Judge Stewart held the re-noticed telephone status conference. Plaintiff
did not participate, through counsel or otherwise. 	Text Minute Entry at 5/21/25. 	There, Judge
Stewart learned from defendant’s counsel that plaintiff may have been deported as a result of his
conviction. Id. At that time, Judge Stewart instructed defendant’s counsel to locate plaintiff and
update the Court. Id.
The next day, Judge Stewart issued a text order summarizing his plan to get this litigation
moving toward a resolution:
TEXT ORDER: On May 21, 2025, an on-the-record status confer-
ence was held telephonically. 	Defendant’s counsel appeared, but
the pro se Plaintiff did not. The Court notes that during a previous
conference, on October 10, 2024, Plaintiff did not meaningfully par-
ticipate and maintained, in response to the Court’s oral questions,
that he was deaf. See Text Order, Dkt. No. 31. At the most recent
conference, defense counsel [indicated] that, to his knowledge, the
Plaintiff had been deported to his home Country of Jamaica. It was
also noted that efforts of the Defense to conduct discovery have been
frustrated due to, inter alia, Plaintiff[’]s failure to provide signed
medical authorizations. The stay of discovery previously imposed
is hereby lifted, and the Court extends discovery to June 30, 2025.
Plaintiff is hereby directed to comply with any outstanding discov-
ery demands, and to update the docket regarding his present address.
Plaintiff is specifically warned that his failure to do so can result in
sanctions being imposed, up to and including, dismissal of the case.
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Defense counsel should utilize his best efforts to attempt to locate
the Plaintiff and provide the Court with a status report on or before
June 30, 2025.
Dkt. No. 58. The Clerk mailed copies of Judge Stewart’s Order to plaintiff’s last known addresses,
but both mailings soon bounced back as undeliverable in early June. Dkt. Nos. 59, 60.
On June 17, 2025, plaintiff filed a letter requesting a settlement conference with a return
address in Jamaica. Dkt. No. 61. In response, defendant filed a status report in which it explained
that discovery was incomplete and that defendant could not assess whether a settlement conference
would be productive at that time. Dkt. No. 63. Judge Stewart reviewed the parties’ filings and set
a telephone status conference to discuss the progress of discovery. Dkt. No. 65.
But on the eve of the conference, plaintiff filed a letter in which he claimed that a confer-
ence was no longer necessary. 	Dkt. No. 68. 	As plaintiff explained, he believed that all of the
lawyers involved in this case are guilty of “fraudulent inducement.” Id. 	Plaintiff stated that he
had filed a claim with the attorney grievance committee seeking their disbarment. Id. Thus, in
plaintiff’s view, there was no reason to respond to any of their requests or to move forward with
discovery at this time. See id.
Judge Stewart disagreed with plaintiff’s view of the situation. 	In response to plaintiff’s
request to cancel the conference, Judge Stewart’s chambers e-mailed plaintiff at the electronic
address included with his most recent physical mailing to advise him that the telephone hearing
would in fact occur as scheduled and to warn plaintiff that his attendance was in fact still required.
On August 5, 2025, Judge Stewart held the scheduled teleconference. 	Plaintiff did not
attend the call despite being instructed to do so. Text Minute Entry at 8/5/25. At that time, Judge
Stewart discussed the history of the case with defendant’s counsel, learned about the outstanding
discovery yet to be conducted, and instructed defendant’s counsel to attempt to schedule plaintiff’s
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video deposition via e-mail. See id. A few days later, Judge Stewart issued a text-only order in a
further attempt to get this litigation back on track toward a resolution:
TEXT ORDER. The Court set this matter down for a status confer-
ence to be held on August 5, 2025. The pro se Plaintiff was notified
of the conference. 	Prior to the conference taking plaint, Plaintiff
wrote a letter to the Court indicating that he was attempting to have
all the attorneys in the case disbarred, and that he felt that the
Court[’]s conference was “no longer necessary.” See Dkt. No. 68.
Plaintiff was then notified by email that the conference would con-
tinue as scheduled, and that he was required to attend. A telephone
conference was held, but the pro se Plaintiff did not appear. Efforts
by Court staff to email him and encourage his appearance were not
effective. At the conference counsel for the Defendant, the United
States of America, indicated that they were unable to effectively
proceed with their defense because they had not been provided with
responses to their discovery demands and, in particular, with medi-
cal authorizations that would allow Defendant to obtain the Plain-
tiff’s medical records. Without that information the Plaintiff’s dep-
osition cannot be held. The Court would note that a previous con-
ference was held with the Plaintiff, and at that time he did not mean-
ingfully participate in the conference. In light of the foregoing, the
Court hereby Orders that on or before August 29, 2025, Plaintiff
shall comply with all outstanding discovery demands and shall
supply a duly executed medical authorization to defense counsel.
In the event that the Plaintiff does not comply with this Court’s Or-
der, the Defendant is given permission to file any appropriate mo-
tion. Further, Plaintiff is given notice that his failure to comply
with Court orders, to attend Court ordered conferences, or to
actively participate in the discovery process and to provide re-
quested documentation and authorizations, could result in sanc-
tions being imposed, up to and including the dismissal of his
claims.
Dkt. No. 69 (emphases in original). Plaintiff did not comply with this Order.
On September 11, 2025, defendant’s counsel e-mailed plaintiff a notice that his deposition
was scheduled to be conducted by videoconference at 10:00 a.m. EST on September 24, 2025. Ex.
A to Ransom Decl., Dkt. No. 73-3. This notice requested that plaintiff confirm his attendance no
later than September 22, 2025. 	Id. 	This notice further warned that the deposition would be
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cancelled if plaintiff failed to confirm his planned participation. Id. Plaintiff did not respond to
this notice and his deposition was cancelled. Ransom Decl., Dkt. No. 73-2 ¶ 4.
On November 17, 2025, this Court entered a text-only order noting that all pre-trial dead-
lines in this case have expired and directing the parties to file a status report. 	Dkt. No. 70. 	In
response, defendant’s counsel filed a status report noting that he had been furloughed during the
recent government shutdown but requested that the dispositive motion deadline be reset to Decem-
ber 15, 2025. Dkt. No. 71. Judge Stewart reset the deadline accordingly. Dkt. No. 72.
On December 15, 2025, defendant moved to dismiss this action based on plaintiff’s failure
to prosecute this action or to comply with various court orders. 	Dkt. No. 73. 	The same day,
plaintiff took advantage of the electronic filing portal (“MFT”) to file a motion “to stay deposition
pending order to confirm fraudulent inducement.” 	Dkt. No. 74. 	The motions have been fully
briefed, Dkt. Nos. 82, 85, and plaintiff has since used MFT to submit a host of additional filings,
Dkt. Nos. 77, 87, 88, 89, 90, 91, 94, 95.1
Under Rule 41 of the Federal Rules of Civil Procedure, a trial court may dismiss an action
“[i]f the plaintiff fails to prosecute or to comply with [the Federal or Local Rules] or a court order.”
FED. R. C IV. P. 41(b); Tylicki v. Ryan, 244 F.R.D. 146, 147 (N.D.N.Y. 2006) (explaining that Rule
41(b)’s reference to “these rules” includes both the Federal Rules of Civil Procedure and a judicial
district’s local rules of practice).
Of course, the outright dismissal of a case is a “harsh remedy to be utilized only in extreme
situations,” United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004), and
1 Plaintiff has repeatedly complained that he was misled into dismissing the Postal Service from this action, insist-
ing that it is a proper defendant for an FTCA claim. Plaintiff is wrong—the only proper defendant in an FTCA case
is the United States of America.
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courts should be particularly hesitant to dismiss a pro se litigant’s case for simple procedural de-
ficiencies, LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001).
Even so, the authority to dismiss an action that a litigant—even a pro se one—has failed to
prosecute “is vital to the efficient administration of judicial affairs and provides meaningful access
for other prospective litigants to overcrowded courts.” Lyell Theatre Corp. v. Loews Corp., 683
F.3d 37, 42 (2d Cir. 1982).
To determine whether dismissal instead of some lesser sanction is warranted, a district
court must weigh five factors:
(1) whether the plaintiff “caused a delay of significant duration”;
(2) whether the plaintiff was “given notice that further delay would
result in dismissal”;
(3) whether the defendant was “likely to be prejudiced by further
delay”;
(4) whether dismissal would balance “the need to alleviate court cal-
endar congestion . . . against [the] plaintiff’s right to an opportunity
for a day in court”; and
(5) whether lesser sanctions would be effective.
Drake, 375 F.3d at 254. 	“No single factor is generally dispositive.” 	Baptiste v. Sommers, 768
F.3d 212, 216 (2d Cir. 2014) (per curiam).
Upon review, defendant’s motion to dismiss must be granted. First, plaintiff has caused a
significant delay. A review of the docket report shows that plaintiff has been pro se in this action
since at least November 15, 2024, when Judge Stewart granted counsel’s request to withdraw.
Dkt. No. 36. 	Thereafter, plaintiff failed to appear at a telephone status conference with Judge
Stewart in March of 2025 and again in May of 2025. This was due, at least in part, to plaintiff’s
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ongoing failure to update his mailing address in accordance with the Local Rules, which caused
several court notices to be returned as undeliverable. Dkt. No. 56.
As a result of plaintiff’s continued failure to promptly update his address in accordance
with the Local Rules, he also failed to comply with Judge Stewart’s May 22, 2025 Order directing
him to respond to any outstanding discovery demands and to update his mailing address on file.
Dkt. Nos. 59, 60. Further, after plaintiff filed a letter requesting a settlement conference, he failed
or refused to attend the telephone discovery conference that Judge Stewart set in response to that
request, claiming that he believed a conference was unnecessary because of fraud. Dkt. No. 68.
Thereafter, due in part to both his failure to attend that most recent conference and his
ongoing failure to update his address, he also failed to comply with Judge Stewart’s August 11,
2025 Order, which directed him—again—to respond to any outstanding discovery demands and
to update his mailing address on file. Dkt. No. 69. Ultimately, after an attempt to schedule plain-
tiff’s video deposition by e-mail failed in early September, defendant finally filed this motion to
dismiss on December 15, 2025. Dkt. No. 73.
This amounts to over a year of delay, and virtually all of it is attributable to plaintiff’s
litigation conduct. 	While short delays generally do not weigh in favor of dismissal, our Local
Rules recognize that a delay of four months is “presumptive evidence of lack of prosecution,”
N.D.N.Y. L.R. 41.2(a), and courts regularly find that this factor weighs in favor of dismissal where
the delay stretches beyond a few months, See, e.g., Rouse v. Transworld Sys., Inc., 811 F. Supp.
3d 400, 406 (E.D.N.Y. 2025) (collecting cases).
Second, plaintiff has been given ample notice and warning that continued delay would
result in dismissal. As noted supra, Judge Stewart repeatedly warned plaintiff that his failure to
participate in this action would justify its dismissal for a failure to prosecute. Although the record
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reflects that several of these filings were returned as undeliverable, our Local Rules make clear
that plaintiff is obligated to promptly notify the Court of any change in address. 	Courts have
repeatedly held that, under these circumstances, any “responsibility for that miscommunication”
lies with the litigant. See, e.g., Sessoms ex rel. V.C. v. Comm’r of Soc. Sec., 2022 WL 511646, at
*2 (E.D.N.Y. Feb. 21, 2022) (collecting cases).
Further, as explained supra, plaintiff repeatedly refused to participate in scheduled status
conferences, and in one instance refused to attend even after Judge Stewart’s chambers made clear
by e-mail that his participation was required. In addition, the fact that plaintiff filed a motion to
stay his deposition via MFT on the exact same day that defendant finally moved to dismiss strongly
suggests that plaintiff had the ability to access and review filings in this litigation.
In short, plaintiff’s repeated failure to follow various court orders leads to the conclusion
that this unreasonable delay is chargeable to him, not to the Court or to defendant. See Rubin v.
Abbott Lab’ys, 319 F.R.D. 118, 121 (S.D.N.Y. 2016) (“All litigants are responsible for keeping
the Court apprised of any changes to their notice address and to the status of their representation,
so that orders, notices and other court documents can reach them.”).
Third, defendant is likely to be prejudiced by further delay, which has already stretched
beyond one year. Courts generally presume that the defendant is likely to suffer prejudice when,
as here, plaintiff has caused an “unreasonable delay.” 	LeSane, 239 F.3d at 209; Lyell Theatre
Corp., 682 F.2d at 43 (“Prejudice to defendants resulting from unreasonable delay may be pre-
sumed.”). 	That conclusion is especially appropriate in this case, where plaintiff has refused to
participate in telephone status conferences, produce discovery, or attend his video deposition.
Fourth, the need to alleviate calendar congestion and move cases toward trial outweighs
plaintiff’s right to receive a further chance to be heard in this case. “Courts in this district have
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held that calendar congestion outweighed a plaintiff’s opportunity to be heard when the plaintiff
has rebuffed opportunities to be heard.” 	Rubin, 319 F.R.D. at 121 (collecting cases). 	That is
exactly what happened here—plaintiff has refused to participate in the discovery process and has
failed to communicate with the Court unless it suits him (such as to demand a settlement confer-
ence or to seek to stay his deposition). In short, it is entirely appropriate to involuntarily dismiss
a civil case that stalled out over a year ago because of plaintiff’s repeated and uninterrupted failure
to respond to, much less comply with, court orders.
Fifth and finally, lesser sanctions would be completely effective. 	Plaintiff has been de-
ported and has complained about his financial condition, which means he almost certainly cannot
afford any kind of monetary sanction (conditional, nominal, or otherwise). Even more importantly,
plaintiff has been unresponsive in this matter, snubbing Judge Stewart’s directives to participate
in discovery conferences and failing to update his mailing address. See Rouse, 811 F. Supp. 3d at
409 (“Of additional concern to the Court is that any lesser sanction would not be effective because
the non-responsive Plaintiff would be unaware that such a sanction had been applied.”).
There is no indication under these circumstances that a lesser sanction than dismissal (that
would necessarily come in the form of a further court order) would prompt compliance. Accord-
ingly, even accounting for plaintiff’s unrepresented status, the relevant factors weigh strongly in
favor of dismissal with prejudice for a failure to prosecute or to comply with court orders.
Therefore, it is
ORDERED that
1. Defendant’s motion to dismiss (Dkt. No. 73) is GRANTED; and
2. Plaintiff’s motion to stay his deposition (Dkt. No. 74) is DENIED as moot.
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The Clerk of the Court is directed to terminate the pending motions, enter a judgment ac-
cordingly, and close the file.
IT IS SO ORDERED.
Dated: April 23, 2026
Utica, New York.
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