Wingate v. City of New York et al

Filing 389

MEMORANDUM & ORDER: The R&R 370 is adopted in its entirety. This case is dismissed with prejudice. The Clerk of Court is respectfully directed to enter judgment and close the case. ORDER ATTACHED. Ordered by Judge Eric R. Komitee on 7/12/2022. (copy mailed). (Guy, Alicia)

Case 1:14-cv-04063-EK-JRC Document 389 Filed 07/12/22 Page 1 of 8 PageID #: 8458

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
BLAKE WINGATE,
Plaintiff,

MEMORANDUM & ORDER
14-cv-4063(EK)(JRC)

-againstRHODA GREENE, EDMOND BURKE, DERRICK
WALLACE, ANDREW HALL, JAMES STANTON,
NEKEISHA DELAPENHA, et al.
Defendants.
------------------------------------x
ERIC KOMITEE, United States District Judge:

The Court has received Magistrate Judge Cho’s Report
and Recommendation (“R&R”) dated April 18, 2022.

ECF No. 374.

Judge Cho recommends that I grant Defendants’ motion to dismiss
this case under Federal Rule of Civil Procedure 41(b) because of
the Plaintiff’s failure to comply with court orders and his
failure to prosecute his case.

Plaintiff (who is currently

incarcerated at Five Points Correctional Facility, and
proceeding pro se here) filed objections to the R&R on May 9,
2022.

Pl.’s Objections to R&R (“Pl.’s Objs.”), ECF No. 381.1


1

After he filed his objections and Defendants responded, see ECF No.
383, Plaintiff submitted additional filings at ECF Nos. 385, 386, and 387,
including a “Notice of Addendum” to the R&R. These filings “contravene[] the
general principle that supplementary filings require leave of the court.”
Endo Pharms. Inc. v. Amneal Pharms., LLC, No. 12-cv-8060, 2016 WL 1732751, at
*9 (S.D.N.Y. Apr. 29, 2016). Moreover, “the decision to permit a litigant to
submit a surreply is a matter left to the court’s discretion, as is the
decision to strike a party’s filing.” Id. “Plaintiff has failed to show good
cause for filing a sur-reply as he has not established that the . . .



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For the reasons set forth below, I adopt the R&R in full and
grant the motion to dismiss.
When a party submits a timely objection, the court
“shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to
which objection is made.”

28 U.S.C. § 636(b)(1)(C).

Those

portions of the R&R that are not objected to are reviewed for
clear error on the face of the record.

See Advisory Comm. Notes

to Fed. R. Civ. P. 72(b); accord State Farm Mut. Auto. Ins. Co.
v. Grafman, 968 F. Supp. 2d 480, 481 (E.D.N.Y. 2013).
A case may be dismissed under Rule 41(b) for failure
to prosecute or failure to comply with a court order.

Fed. R.

Civ. P. 41(b); LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d
206, 209 (2d Cir. 2001).

In weighing dismissal, courts consider

(1) the duration of the plaintiff’s failure to comply
with the court order, (2) whether plaintiff was on
notice that failure to comply would result in
dismissal, (3) whether the defendants are likely to be
prejudiced by further delay in the proceedings, (4) a
balancing of the court’s interest in managing its
docket with the plaintiff’s interest in receiving a
fair chance to be heard, and (5) whether the judge has


defendants raised a new issue for the first time on reply.” Ramon v. Corp.
City of New York, No. 17-cv-2307, 2019 WL 1306061, at *7 (E.D.N.Y. 2019).
Thus, for the purposes of this order I disregard plaintiff’s unauthorized
sur-replies and take into account only his timely objections to the R&R, made
on May 9, 2022, at ECF No 381.
2

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adequately considered a sanction less drastic than
dismissal.
Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014).2
For the reasons Judge Cho stated in the R&R, each of
these factors weighs in favor of dismissal.

Most significantly,

throughout the final pretrial conference and jury selection,
Plaintiff declined to comply with the Court’s orders and
obstructed the proceedings with abusive outbursts and
inappropriate statements.

Judge Cho enumerated several examples

of Plaintiff’s most obstructive conduct; they are set forth in
the margin.3

See, e.g., Koehl v. Bernstein, 740 F.3d 860, 862

(2d Cir. 2014) (affirming dismissal with prejudice following pro
se plaintiff’s “repeated use of abusive, insulting language
directed at the Magistrate Judge”).
Plaintiff declined to return to court for the second
day of jury selection, scheduled for Thursday, June 14.
Refusal/Waiver of Right to be Physically Present at Court, ECF

2 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, and internal quotation
marks.᩿᩿
3 Plaintiff made a series of vulgar, sexually explicit comments to Judge
Cho and others in the courtroom. I need not repeat these here, as they are
set forth in the R&R and various transcripts. See R&R 2-4; see also Tr. of
Proceedings on April 13, 2022 (“Apr. 13 Tr.”) 12:17-24, 28:12-15, 43:1245:21, 44:12-18, 45:2-4, 47:3-48:3, ECF No. 373. Plaintiff also made a
series of explicitly racist comments. See, e.g., Apr. 13 Tr. 40:9-13. And
Plaintiff left no question about his views of the Court’s authority, stating
among other things that “I don’t respect your orders, you’re not here,”
“[s]hut the f**k up,” and “I’m not gonna watch my language. I can disrespect
anybody I want, any time I want.” Id. at 49:11-14, 79:4–80:6.

3

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No. 369.

According to a form filled out by prison authorities

that morning – titled “Refusal/Waiver of Right to be Physically
Present in Court” and signed by two witnesses – Plaintiff
“refused his Court trip” because he was “not feeling well.”

See

id.; see also Tr. of Proceedings dated April 14, 2022 (“Apr. 14
Tr.”), ECF No. 372 (during phone conference, scheduled for 9:30
a.m. on April 14 after Plaintiff did not appear in court, Mr.
Wingate said that he did not come because of medical reasons).
On the phone, after making more aggressive comments to opposing
counsel – including that he would “blow her back out with her
partner and whoever else is on the line” if she filed a Rule 41
motion – Plaintiff agreed to continue jury selection on Monday,
April 18.

Apr. 14 Tr. 210:15-16, 219:24-220.

Plaintiff did

return on April 18, but abruptly exited the courtroom shortly
thereafter and refused to continue with the proceeding.

Tr. of

Proceedings dated April 18, 2022 (“Apr. 18 Tr.”) 236:16-238:12,
ECF No. 375.

Because of the severity of Plaintiff’s conduct and

the fact that it lasted several days, the first Baptiste factor
is easily satisfied.
The second factor is satisfied because Plaintiff had
clear notice that his conduct could result in dismissal.

“While

a court is ordinarily obligated to afford a special solicitude
to pro se litigants, dismissal of a pro se litigant’s action as
a sanction may nonetheless be appropriate so long as a warning
4

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has been given that noncompliance can result in dismissal.”
Koehl, 740 F.3d at 862; see also Pimentel v. Delta Air Lines,
Inc., 818 F. App’x 100, 101 (2d Cir. 2020) (affirming dismissal
of case where, after issuing several warnings to pro se
plaintiff, “the district court dismissed the actions with
prejudice, pursuant to Fed. R. Civ. P. 41(b), for failure to
comply with court orders and for using abusive language toward
the judges”).

Exhibiting an exceptional degree of patience,

Judge Cho warned Plaintiff of this risk repeatedly throughout
jury selection.

See, e.g., Apr. 14 Tr. 213:22-214:1 (“Mr.

Wingate, you have received numerous warnings that your case may
be dismissed if you continue to disrupt your own proceedings and
refuse to comply with the orders of this Court.”); id. at
214:16-23 (The Court: “[I]f you do not appear on Monday to
complete jury selection, I may have to recommend that Judge
Komitee dismiss this case . . . for your obstruction of these
proceedings and for failure to comply with court orders.

Do you

understand, Mr. Wingate?”; Plaintiff: “Yes.”); Apr. 18 Tr.
223:9-19 (warning the parties that they “may not speak over me
or each other and . . . may not interrupt me or each other,” and
that “[i]f these rules are not complied with, I may hold a party
in contempt or recommend to Judge Komitee that he dismiss[es]
the case”).

5

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When Plaintiff left the courtroom on April 18,
proclaiming “I am done. . . . I am out of here,” Judge Cho
asked: “It appears that you are packing up and preparing to
leave the courtroom.

Are you refusing to participate in the

jury selection process?”

Apr. 18 Tr. 236:15-237:1.

When

Plaintiff did not respond, Judge Cho advised Plaintiff – as he
was still in the courtroom but preparing to leave – that if he
”refuse[d] to participate in the jury selection process,” Judge
Cho would “have no choice but to recommend dismissal of [the]
action today.”
not return.

Id. at 237:4-7.

Plaintiff left anyway and did

Id. at 237:13-14, 238:5-18.

The third factor is satisfied because this case has
been pending for eight years.

See R&R 8.

And Plaintiff’s

interest in having his case heard — the fourth Baptiste factor —
does not balance favorably here against the Court’s interest in
controlling its docket.

Plaintiff had his day in court,

succeeding past the summary judgment stage, and the Court was
prepared to afford him the trial he had sought.

Finally, the

fifth factor weighs in favor of dismissal because no lesser
sanction would be appropriate.

Judge Cho exhibited

extraordinary patience in proceeding with Plaintiff’s case, and
afforded him multiple opportunities to continue despite
Plaintiff’s obstructive and abusive behavior.

See id. at 9-10.

For these reasons, Judge Cho correctly concluded that dismissal
6

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is the appropriate sanction in this case.

E.g., Jenkins v.

Charles, No. 13-CV-3405, 2018 WL 626340, at *4-5 (S.D.N.Y. Jan.
30, 2018) (dismissing case for “abuse of the court process,
abuse of judicial officers, outbursts in court, and attacks on
the integrity of the court” after plaintiff “hijacked the
proceedings,” was “confrontational,” and “kept interrupting the
Court”).
Plaintiff’s objections are without merit.

He defends

his conduct as being merely “assertive,” but the quotations
above and in the R&R make clear the degree of understatement
that argument entails.

Many of Plaintiff’s objections focus on

the (unfounded) perception that he was denied his right to
exercise his religion during trial because the Court “breached”
an agreement to allow Plaintiff to participate in Friday
prayers, and that Judge Cho “sought [to] dismiss based upon
[Plaintiff’s] religion.”

Pl.’s Objs. 2-3.

There is simply no

evidence to support Plaintiff’s allegations; at the pretrial
conference on April 6, I actively sought to accommodate
Plaintiff’s religious observance on Fridays by amending the
trial schedule to exclude Friday, see Defs.’ Ex. E, Tr. of

7

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Proceedings dated April 6, 2022, ECF No. 383-5, and neither
Judge Cho nor I conducted this proceeding on a Friday.4
Having reviewed the record, I agree with Judge Cho’s
findings and conclusions and therefore adopt the R&R in its
entirety.

This case is dismissed with prejudice.

The Clerk of

Court is respectfully directed to enter judgment and close the
case.

SO ORDERED.
/s/ Eric Komitee__________
ERIC KOMITEE
United States District Judge

Dated:

July 12, 2022
Brooklyn, New York


4

The first day of jury selection was on Wednesday, April 13; the second
day was scheduled for Thursday, April 14, but Mr. Wingate did not come to
court. During the phone conference that day, Judge Cho inquired whether the
following day (a Friday) might be an option for conducting jury selection, to
which Plaintiff replied that it was not. Apr. 14 Tr. 198:10-12 (The Court:
“Now, to clarify, are you able to participate in jury selection tomorrow,
Friday?”; Plaintiff: “No, tomorrow is Jum[’ah]”). Judge Cho then adjourned
jury selection until the morning of Monday, April 18.
Nothing in the record indicates any religious (or other) bias by Judge
Cho. Plaintiff’s objections follow the same line of obstructive conduct he
demonstrated in court – arguing that Judge Cho lacks “integrity” and acts
with bias, see Pl.’s Objs. 8, 18; and rejecting the Court’s authority
generally. See, e.g., id. at 5 (“judges and magistrates . . . can kick rocks
and go somewhere else”).
8