DECISION AND ORDER P ro se plaintiff Jason I. Baxter filed this civil rights action seeking relief under 42 U.S.C. §1983. At the time the complaint was filed in 2019, Baxter was an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), at the Southport Correctional Facility. He named a single defendant, Bart E. Wagner, who was a DOCCS captain employed at Southport. Defendant has moved to dismiss the complaint for failure to prosecute, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, and based on plaintiff’s failure to appear for his deposition, pursuant to Rule 37(d). For the reasons that follow, the motion is granted and the complaint is dismissed. BACKGROUND Several times over the course of the litigation, Baxter notified the Court that his mailing address had changed, as he was transferred to various correctional facilities. See, e.g., Dkt. #23, #26, #27. The most recent such notice, which was dated April 28, 2024 and received by the Court on May 2, 2024, stated that plaintiff’s address had changed from Green Haven Correctional Facility to a street address in Uniondale, New York. (Dkt. #36.) The DOCCS Incarcerated Lookup service indicates that Baxter was released from DOCCS custody to the Division of Parole on April 18, 2024. (Dkt. #41-6.) Prior to his release, on November 17, 2023 Baxter participated in a telephonic scheduling conference with defense counsel and Magistrate Judge Marian W. Payson. (Dkt. #33.) Following the conference, the Court issued a Scheduling Order (Dkt. #34), which stated in part that “[t]he defendants may depose the plaintiff pursuant to Fed. R. Civ. P. 30(a)….” Id. 3. A November 17, 2023 docket entry also indicates that on that date, the Court mailed to plaintiff copies of the Court’s Local Rules of Civil Procedure and Handbook for Pro Se Litigants, both of which explain the nature of and procedures for conducting depositions. On May 22, 2024, defendant sent plaintiff a Notice of Deposition, stating that defendant would depose plaintiff at 10:00 a.m. on June 20, 2024 at the New York State Attorney General’s regional office in Rochester, New York. (Dkt. #41-3.) The notice, which was sent by First Class Mail to the Uniondale address provided by plaintiff, was returned by the Postal Service marked, “Return to Sender — Not Deliverable as Addressed — Unable to Forward.” (Dkt. #41-4.) A second Notice of Deposition was sent, again to the Uniondale address, on June 4, 2024. That letter was not returned as the previous one had been, so presumably it was delivered. Defense counsel states that on June 20, he was at the office designated in the Notice of Deposition, along with a stenographer, prepared to take plaintiff’s deposition. Plaintiff did not appear. Counsel states that he waited until 10:30 a.m., a half hour past the noticed start time, but plaintiff never showed up. Counsel also states that plaintiff had not previously communicated with him, after the second Notice of Deposition was mailed, and had given no indication that he would be late or unable to appear. Declaration of John Marsella, Esq. (Dkt. #41-2)
