Witharana v. People of New York et al

Filing 28

ORDER ADOPTING 27 REPORT AND RECOMMENDATIONS. For the foregoing reasons, the Court adopts Judge Go's R&R and this case is dismissed for failure to prosecute. The Clerk of Court is directed to enter judgment for defendant, and to close this c ase. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal would not be taken in good faith and therefore in f orma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). So Ordered by Judge Eric N. Vitaliano on 7/23/2015. (c/m; fwd'd for jgm) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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PASAN WITHARANA,

MEMORANDUM & ORDER
Plaintiff,
13-CV-3102 (ENV)(MDG)
-againstHUGH DORSEY (NYPD DETECTIVE),
Defendant.

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VIT ALIANO, D.J.
Pasan Witharana,pru-se, commenced this civil action on May 22, 2013
against defendant Detective Hugh Dorsey of the New York City Police
Department ("NYPD") and three other defendants. The Court previously
dismissed all claims against those three others, and Detective Dorsey moved
to dismiss for lack of prosecution based upon Witharana's repeated failure to
comply with Magistrate Judge Go's orders to provide necessary medical
releases. On May 7, 2015, Judge Go entered a Report and Recommendation
("R&R") (Dkt. No. 27) recommending that the case be dismissed. For the
reasons that follow, the Court adopts Judge Go's R&R in its entirety as the
decision of the Court.
Background
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Witharana commenced this action alleging false arrest and malicious
prosecution in under 42 U.S.C. § 1983. (Compl. at 3). According to the
complaint, Detective Dorsey falsely arrested Witharana on April 18, 2012
when he placed him into custody where, ultimately, he was transfered to a
psychiatric institution from which he was released on February 19, 2013.
(Compl. at 3). The criminal charges against him, which included assault,
aggravated harassment and stalking counts, were ultimately dismissed.
(Compl. at 5).
On July 9, 2013, Detective Dorsey requested an extension of time to
answer the complaint, and also sought signed releases from Witharana for
certain confidential medical and arrest records. (Dkt. No. 9). Judge Go
granted the application. (See Elec. Order. Dated July 9, 2013). Approximately
two weeks later, on July 25, 2013, Witharana filed a letter objecting to
providing the releases, stating that he was "not willing to release any
information to defendant." (Dkt. No. 10 at 2). Detective Dorsey then moved to
compel the release of those records, to which Witharana responded with
copies of publicly available documents that were already attached to his
complaint. (Dkt. No. 12). Along with his opposition, Witharana filed a notice
of appeal to the Second Circuit, which was apparently not docketed in this
Court until February 6, 2014. (Dkt. No. 18).
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On August 16, 2013, defendant renewed his motion to compel. (Dkt. No.
16). On August 19, 2013, Judge Go, again, granted an extension of time to
answer the complaint, and, once again, directed Witharana to provide the
necessary releases. (Dkt. No. 17). This time, Judge Go also warned Witharana
that his failure to comply with her order could result in his complaint being
dismissed. (Id.). On November 21, 2013, defendant informed the Court that
Witharana's arrest records had been located, since, apparently, they had not
actually been sealed. He also advised Judge Go that he still required the
relevant medical releases. (Dkt. No. 20).
On February 6, 2014, the Second Circuit dismissed Witharana's appeal
as premature, directing this Court to treat the appeal as an objection to the
magistrate judge's order. (Dkt. No. 21). On February 12, 2014, the Court
overruled Witharana's objections, and, on February 14, 2014, Judge Go, once
again, directed him to provided signed medical releases. (Id.; Dkt. No. 22).
Undeterred, Witharana filed another notice of appeal, which the Second
Circuit dismissed sua sponte. (Dkt. No. 25). In an abundance of caution, and
patience, Judge Go issued a final order giving Witharana "a final opportunity
to comply with the Court's prior orders). (Elec. Order Jan. 9, 2015).
Witharana has filed no response, and has still failed to provide the releases.
Detective Dorsey, in a letter application, moved to dismiss the action for
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failure to prosecute on February 2, 2015. To date, Witharana has not filed a
response and remained in defiance of the prior orders. On May 7, 2015, Judge
Go issued an R&R recommending that the motion to dismiss for lack of
prosecution be granted.
Discussion
In reviewing an R&R of a magistrate judge, a district judge "may
accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge." 28 U.S.C. § 636(b)(l). A district judge is
required to "make a de novo determination upon the record, or after
additional evidence, of any portion of the magistrate judge's disposition to
which specific written objection has been made" by any party. Fed. R. Civ. P.
72(b). But, where no timely objection has been made, the "district court need
only satisfy itself that there is no clear error on the face of the record" to
accept the R&R. Urena v. New York, 160 F. Supp. 2d 606, 609-10 (S.D.N.Y.
2001).
The R&R in this case was sent by mail to Witharana the day it was
entered, and advised him that any objections he wanted to assert had to be
received by May 26, 2015. No party has objected to Judge Go's R&R, much
less within the time prescribed by 28 U.S.C. § 636(b)(l) and as noted in Judge
Go's R&R. In accord with the applicable standard of review, the Court finds

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Judge Go's R&R to be characteristically correct, well-reasoned and free of
any clear error. The Court, therefore, adopts it in its entirety as the opinion
of the Court.
Conclusion
For the foregoing reasons, the Court adopts Judge Go's R&R and this
case is dismissed for failure to prosecute.
The Clerk of Court is directed to enter judgment for defendant, and to
close this case.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal
would not be taken in good faith and therefore in f orma pauperis status is
denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438,
444-45 (1962).

Dated:

Brooklyn, New York
July 23, 2015

s/Eric N. Vitaliano

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ERIC N. VITALIANO
United States District Judge

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