govinfo:USCOURTS-nynd-1_24-cv-00526-2

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF NEW YORK 
 
CHANDLER HICKENBOTTOM, 
 
Plaintiff, 
 
 v. 
 
DEVIN J. ANDERSON
, et al., 
 
Defendants. 
 
 
 
 
 
 
 1:24-cv-00526 (AMN/CBF)
 
 
APPEARANCES: OF COUNSEL: 
 
CHANDLER HICKENBOTTOM 
19 Elberon Place 
Albany, New York 12203 
Plaintiff pro se 
 
THE REHFUSS LAW FIRM, P.C. STEPHEN J. REHFUSS, ESQ. 
40 British American Boulevard 
Latham, New York 12110 
Attorney for Defendants 
Hon. Anne M. Nardacci, United States District Judge: 
MEMORANDUM-DECISION & ORDER 
I. INTRODUCTION 
On April 15, 2024, Plaintiff pro se Chandler Hickenbottom commenced this action 
pursuant 42 U.S.C. § 1983 (“Section 1983”) against Devin J. Anderson, Marcus Felton, the City 
of Albany, and fifteen Doe defendants. Dkt. No. 1 (“Complaint”). Presently before this Court is 
Defendants’ motion to dismiss the Complaint for failure to prosecute pursuant to Rule 41(b) of the 
Federal Rules of Civil Procedure, as well as for insufficient service of process and lack of personal 
jurisdiction pursuant to Rules 12(b)(5) and 12(b)(2), respectively. See Dkt. No. 31 (“Motion”). 
Plaintiff has not responded to the Motion. 

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For the reasons set forth below, Defendants’ Motion is granted. 
II. BACKGROUND 
A. Procedural History 
On April 15, 2024, Plaintiff commenced this action pursuant to Section 1983 against Devin 
J. Anderson, Marcus Felton, the City of Albany, and fifteen Doe defendants alleging that she was 
assaulted while participating in a peaceful protest at the Albany Police Department South Station 
precinct. See Dkt. No. 1. Plaintiff sought leave to proceed in forma pauperis (“IFP”). Dkt. No. 
2. This matter was referred to Magistrate Judge Thérèse Wiley Dancks, who reviewed the 
Complaint pursuant to 28 U.S.C. § 1915, and on May 23, 2024, issued an Order and Report-
Recommendation (“Report-Recommendation”) granting Plaintiff’s application to proceed IFP and 
recommending that the Court (i) dismiss Plaintiff’s Section 1983 claim against the City of Albany 
without prejudice and with leave to amend and (ii) that Plaintiff’s First Amendment free speech, 
association, and retaliation claims, Fourth Amendment excessive force claims, and Fourteenth 
Amendment equal protection claim survive initial review. Dkt. No. 4 at 6-7.
1 On June 24, 2024, 
this Court adopted the Report-Recommendation in its entirety and ordered that any amended 
complaint must be filed within thirty days of the date of the Order. See Dkt. No. 5 at 4. 
Over six months later, on January 15, 2025, the Court noted that Plaintiff had not filed an 
amended complaint and directed the Clerk terminate the City of Albany as a defendant. Dkt. No. 
6. The Court also directed the Clerk to issue summonses and a General Order 25 filing order, and 
forward them, along with two copies of the Complaint, to the U.S. Marshals for service upon 
Defendants Anderson and Felton (“Defendants”). Id. That same day, summonses were issued as 
 
1 Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic 
filing system. 

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to the Defendants, see Dkt. No. 7, but they were both returned unexecuted. See Dkt. Nos. 10, 11. 
On April 7, 2025, the Court directed the Clerk to reissue summonses, see Dkt. No. 12, and the 
summonses were reissued that same day. Dkt. No. 13. On April 25, 2025, an executed 
acknowledgement of service as to Defendant Felton was filed, see Dkt. No. 15, but the summons 
as to Defendant Anderson was returned unexecuted with a note that Defendant Anderson was 
transferred to a different Albany Police Department station. See Dkt. No. 16. The Clerk reissued 
summons for Defendant Anderson on April 28, 2025, and again on November 6, 2025, see Dkt. 
Nos. 18, 23, but each time the summons was returned unexecuted. See Dkt. Nos. 22, 25. On 
November 24, 2025, a summons was reissued once more as to Defendant Anderson at his current 
workplace, see Dkt. No. 28, and an executed acknowledgement of service as to Defendant 
Anderson was filed on February 1, 2026. See Dkt. No. 37. 
During the course of this Court’s attempts to effectuate service upon Defendants, numerous 
Court orders and notices mailed to Plaintiff at her address of record were returned as undeliverable, 
beginning as early as May 12, 2025. See Dkt. Nos. 19, 20, 29, 34, 35, 39. On November 7, 2025, 
Magistrate Judge Dancks issued a Text Order noting that Plaintiff had not contacted the Court or 
filed anything on the docket since the filing of the Complaint on April 15, 2024, approximately 
nineteen months prior. Dkt. No. 24. Magistrate Judge Dancks accordingly directed Plaintiff to 
update her address and other contact information with the Court immediately and warned that 
failure to do so would result in sanctions, which could include dismissal of the action for failure 
to prosecute and failure to follow Court orders and directives. Id. (citing Fed. R. Civ. P. 41(b); 
N.D.N.Y. L.R. 41.2). 

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B. The Motion 
On January 6, 2026, Defendants moved to dismiss the Complaint for failure to prosecute 
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, as well as for insufficient service 
of process and lack of personal jurisdiction pursuant to Rules 12(b)(5) and 12(b)(2), respectively. 
Dkt. No. 31; see also Dkt. No. 33 (certificate of service indicating that the motion papers were 
mailed to Plaintiff’s address of record). Specifically, Defendants contend that Plaintiff’s inactivity, 
lack of communication, and failure to comply with this Court’s orders warrants dismissal under 
Rule 41(b). Dkt. No. 31 at 3-4. Defendants also contend that the Court lacks personal jurisdiction 
over Defendant Anderson under Rule 12(b)(2) because he was never properly served pursuant to 
Rule 12(b)(5), and that service was untimely as to Defendant Felton under Rule 4(m). Id. at 2-3. 
That same day, the Clerk mailed a notice to Plaintiff informing her that she may file a 
response to the Motion on or before January 27, 2026, pursuant to Local Rule 7.1(a)(1). Dkt. No. 
32. The notice was returned as undeliverable. See Dkt. No. 35. Over six months have passed 
since the Defendants filed their motion to dismiss, and Plaintiff has not filed a response. See 
generally Docket Sheet. 
III. STANDARD OF REVIEW 
“Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its 
discretion, dismiss an action based upon the failure of a plaintiff to prosecute it, or to comply with 
the procedural rules or orders of the court.” Betta Moments v. Corr. Officer Doe, No. 25-cv-635, 
2026 WL 192312, at *2 (N.D.N.Y. Jan. 26, 2026) (citing Fed. R. Civ. P. 41(b); Link v. Wabash 
R.R. Co., 370 U.S. 626 (1962)). “District courts have an ‘inherent power’ to dismiss an action 
based on plaintiff’s failure to prosecute or comply with an order of the court pursuant to Rule 
41(b).” Lynch v. Hanley, No. 21-cv-25 (AMN/ML), 2023 WL 4763941, at *3 (N.D.N.Y. July 26, 

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2023) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991)). “This authority ‘is vital to the 
efficient administration of judicial affairs and provides meaningful access for other prospective 
litigants to overcrowded courts.’” Id. (quoting Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 
42 (2d Cir. 1982)). However, dismissal under Rule 41(b) is a “‘harsh remedy to be utilized only 
in extreme situations,’” particularly “where a plaintiff is proceeding pro se.” Jackson v. United 
States, No. 17-cv-1157, 2020 WL 109009, at *2 (N.D.N.Y. Jan. 9, 2020) (quoting LeSane v. Hall’s 
Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) and citing Lucas v. Miles, 84 F.3d 532, 535 
(2d Cir. 1996) (holding that the circuit court will give due deference to the district court’s decision 
to dismiss a pro se complaint “only when the circumstances are sufficiently extreme”)). 
“Notwithstanding a plaintiff’s pro se status, Rule 41(b) gives the district court explicit authority to 
dismiss a case where the plaintiff fails to comply with the court’s orders or otherwise fails to 
prosecute the action ‘diligently.’” Banks v. Racette , No. 18-cv-319, 2019 WL 5653232, at *2 
(N.D.N.Y. Oct. 30, 2019) (citing Lyell Theatre, 682 F.2d at 43). 
In determining whether dismissal under Rule 41(b) is warranted, courts in the Second 
Circuit consider the following five factors, none of which are dispositive: (1) the duration of the 
plaintiff’s failure to comply with orders of the court; (2) whether the plaintiff received notice that 
failure to comply would result in dismissal; (3) whether the defendant is likely to be prejudiced by 
further delay; (4) whether an appropriate balance has been struck between the court’s interest in 
managing its docket and plaintiff’s interest in receiving a fair opportunity to be heard; and (5) 
whether the judge has adequately considered lesser sanctions than dismissal. See Baptiste v. 
Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (quoting Lucas, 84 F.3d at 535); see also United States 
ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). 

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IV. DISCUSSION 
In ordering the dismissal of Plaintiff’s Complaint, the undersigned is cognizant that 
dismissal is considered a “harsh remedy,” particularly in an action brought by a pro se plaintiff. 
See LeSane, 239 F.3d at 209. However, Plaintiff has not taken any meaningful action to advance 
her case since its commencement and has failed to communicate with the Court and Defendants. 
Accordingly, the Court finds that all five factors, taken together, weigh heavily in favor of 
dismissal. The Court addresses each factor in turn. 
In examining the first factor, the Court considers two inquiries: (1) whether the failures to 
prosecute were those of the plaintiff, and (2) whether those failures were of significant duration. 
See Drake, 375 F.3d at 255 (citing Martens v. Thomann, 273 F.3d 159, 180 (2d. Cir. 2001)). As 
to the former, there can be little dispute that Plaintiff has failed to prosecute this case. Plaintiff’s 
only participation in the prosecution of this case has been the filing of the initial Complaint. See 
Dkt. No. 1. To date, Plaintiff has not complied with Magistrate Judge Dancks’ Order directing her 
to update her address and other contact information. See Dkt. No. 24. Due to Plaintiff’s failure to 
comply, this case “is effectively dormant and cannot proceed without Plaintiff’s participation.” 
Abarca v. Chapter 4 Corp., No. 18-cv-11206, 2019 WL 13221420, at *1 (S.D.N.Y. Mar. 21, 2019). 
If Plaintiff did not receive actual notice of this Court’s Orders either by mail or by email, 
“responsibility for that miscommunication lies with h[er].” Wilson v. Doe 1-4 , No. 21-cv-5170, 
2022 WL 2065030, at *2 (E.D.N.Y. June 8, 2022); see also Allen v. Moreland , No. 16-cv-6539, 
2018 WL 3637467, at *1 (W.D.N.Y. July 30, 2018) (“The demand that plaintiffs provide contact 
information is no esoteric rule of civil procedure, but rather the obvious minimal requirement for 
pursuing a lawsuit.”). As such, the delay in this case is a result of Plaintiff’s own failures. See 
Drake, 375 F.3d at 255. 

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With respect to the latter inquiry, the duration of these failures is significant. “Although 
there is no ‘magic number’ to determine whether Plaintiff’s delay endured for a ‘significant’ 
period,” see Hendricks v. Curley , No. 23-cv-487 (AMN/MJK), 2024 WL 4493397, at *3 
(N.D.N.Y. Oct. 15, 2024) (quoting Ransom v. United States, No. 09-cv-1272, 2011 WL 2893067, 
at *5 (N.D.N.Y. July 15, 2011)), the Court notes that the Local Rules of the Northern District of 
New York provide that a plaintiff’s failure to take action for four months is “presumptive evidence 
of lack of prosecution.” N.D.N.Y. L.R. 41.2(a). Here, this action has been pending for over two 
years. Plaintiff has not taken any action to move this litigation forward since April 15, 2024. See 
Dkt. No. 1. The Second Circuit has found delays of far less time than this to be sufficient to 
support dismissal. See, e.g., Murray v. Doe, No. 24-cv-5849, 2025 WL 623698, at *2 (S.D.N.Y. 
Feb. 26, 2025) (seven months); Mayer v. Clinton Cnty., No. 17-cv-905, 2020 WL 5536800, at *5 
(N.D.N.Y. Aug. 7, 2020) (six months), report and recommendation adopted sub nom. Mayer v. 
Liberty, 2020 WL 5531543 (N.D.N.Y. Sept. 15, 2020). Accordingly, this factor weighs in favor 
of dismissal. 
The second factor asks whether Plaintiff “received notice that further delays would result 
in dismissal.” Drake, 375 F.3d at 255 (internal quotation marks and citation omitted). Here, 
Plaintiff was on notice that further delay could result in the dismissal of this action. On April 15, 
2024, Plaintiff signed a pro se notice that reminded her to “immediately notify the Court of any 
change of address” and expressly warned her that failure to do so “may result in the involuntary 
dismissal of [her] case for failure to prosecute.” See Dkt. No. 3 at 2 (citing Fed. R. Civ. P. 41(b); 
N.D.N.Y. L.R. 10.1(c)(2), 41.2(b)). As previously noted, it remains Plaintiff’s duty to diligently 
pursue her case and to inform this Court of any change of address. See Terry v. City of New York, 
No. 20-cv-81, 2020 WL 5913409, at *2 (S.D.N.Y. Oct. 6, 2020). Therefore, this factor weighs in 

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favor of dismissal. See, e.g., Qi v. Yang, No. 26-cv-251, 2026 WL 1078387, at *2 (S.D.N.Y. Apr. 
21, 2026) (dismissal after one warning); Leybinsky v. United States Citizenship & Immigr. Servs., 
No. 19-cv-6154, 2020 WL 7295661, at *2 (E.D.N.Y. Dec. 2, 2020) (same). 
The third factor examines whether Defendants have been prejudiced by Plaintiff’s failure 
to prosecute. Prejudice to Defendants can be presumed where, as here, Plaintiff’s actions 
unreasonably delayed the case. See Peterson v. Crowe, No. 22-cv-212, 2023 WL 4187389, at *3 
(N.D.N.Y. May 9, 2023), report and recommendation adopted, 2023 WL 4175294 (N.D.N.Y. June 
26, 2023); see also Caussade v. United States, 293 F.R.D. 625, 630-31 (S.D.N.Y. 2013) (collecting 
cases showing that courts presume prejudice “[w]here a plaintiff has become inaccessible for 
months at a time”). Moreover, as the Second Circuit has recognized, “delay by one party increases 
the likelihood that evidence in support of the other party’s position will be lost and that discovery 
and trial will be made more difficult.” Shannon v. Gen. Elec. Co. , 186 F.3d 186, 195 (2d Cir. 
1999). Thus, Defendants have been prejudiced by Plaintiff’s delay, “as the amount of time that 
has passed since the occurrence of the alleged incident makes it more difficult for them to access 
evidence.” Anthony v. Lyons, No. 18-cv-849, 2021 WL 1701754, at *4 (N.D.N.Y. Apr. 12, 2021), 
report and recommendation adopted, 2021 WL 1699858 (N.D.N.Y. Apr. 29, 2021). Accordingly, 
this factor weighs in favor of dismissal. 
The fourth factor addresses the balance between the Court’s interest in alleviating court 
congestion and managing its docket, and the plaintiff’s interest in receiving an opportunity to be 
heard. See Lucas, 84 F.3d at 535. Under these circumstances, the scale balancing the Court’s 
interest with Plaintiff’s interest tips decidedly in favor of dismissal. Indeed, “[t]he Court has a 
strong interest in managing its docket and ‘cannot wait indefinitely’ for Plaintiff to ‘turn her 
attention’ to this case.” Larmon v. White , No. 24-cv-2191, 2024 WL 4099927, at *5 (E.D.N.Y. 

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Sept. 6, 2024) (quoting Pena v. Zazzle Inc., 587 F. Supp. 3d 109, 114 (S.D.N.Y. 2022)) (brackets 
omitted). Additionally, Plaintiff’s “failure to comply with the court’s order or make an attempt to 
prosecute this case dismisses h[er] right to have the court hear h[er] claim.” Pena, 587 F. Supp. 
3d at 114 (citations omitted). Accordingly, this factor also weighs in favor of dismissal. 
As to the final factor, the Court finds that the imposition of a lesser sanction would have 
no effect on Plaintiff, or this litigation, given Plaintiff’s repeated failure to update her address or 
otherwise participate in this action in any manner. See Anthony, 2021 WL 1701754, at *5 (finding 
that the imposition of a lesser sanction “would be ineffective because Plaintiff’s failure to comply 
with the Court’s orders indicates that a lesser sanction would not motivate him to participate in 
this action”) (citations omitted), report and recommendation adopted , 2021 WL 1699858 
(N.D.N.Y. Apr. 29, 2021). This litigation has been pending since April 15, 2024, see Dkt. No. 1, 
and Plaintiff’s ongoing failure to update her address demonstrates that “there is no meaningful way 
to secure Plaintiff’s appearance before the Court to litigate this action.” Lando v. Claudio, No. 18-
cv-1472, 2022 WL 3701719, at *4 (N.D.N.Y. Apr. 21, 2022), report and recommendation 
adopted, 2022 WL 3701572 (N.D.N.Y. Aug. 26, 2022). Nevertheless, given Plaintiff’s pro se 
status, the Court finds that dismissal without prejudice is appropriate, permitting Plaintiff to bring 
this lawsuit at another time within the applicable statutes of limitations if and when she is prepared 
to diligently litigate it. See Cutting v. Riveles Wahab LLP, No. 23-cv-6040, 2024 WL 3833890, at 
*2 (S.D.N.Y. Aug. 14, 2024) (dismissing without prejudice for failure to prosecute). 
Accordingly, after careful consideration of the relevant factors, the Court concludes that 
dismissal of Plaintiff’s Complaint is warranted for failure to prosecute pursuant to Rule 41(b).2 
 
2 Since the Court dismisses this action in its entirety for failure to prosecute, the Court declines to 
address the other grounds for dismissal raised by Defendants. See Flores v. Mario’s Pizzeria of 
Oyster Bay, No. 23-cv-4261, 2024 WL 1704721, at *1 n.2 (E.D.N.Y. Apr. 19, 2024) (declining to 

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V. CONCLUSION 
Accordingly, the Court hereby 
ORDERS that Defendants’ motion to dismiss, Dkt. No. 31, is GRANTED; and the Court 
further 
ORDERS that Plaintiff’s Complaint, Dkt. No. 1, is DISMISSED without prejudice; and 
the Court further 
ORDERS that the Clerk serve a copy of this Order on the parties in accordance with the 
Local Rules. 
IT IS SO ORDERED. 
Dated: June 16, 2026 
 Albany, New York 
 
 
address additional grounds for dismissal set forth in defendants’ motion given that the action was 
dismissed pursuant to Rule 41(b) for failure to prosecute); Morales v. N.Y.C. Dep’t of Corr. , No. 
10-cv-1615, 2011 WL 6706107, at *1 (E.D.N.Y. Dec. 21, 2011) (declining to consider dismissal 
under Rule 4(m) for untimely service because action was dismissed for failure to prosecute).
 

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