Horton v. The City of New York et al et al

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATION. For the reasons set forth in the enclosed Order, the court finds no clear error in Judge Blooms Report and Recommendation and hereby affirms and adopts the Report and Recommendation as the opinion of the cou rt. The Clerk of the Court is respectfully directed to dismiss the claims against defendants in accordance with Judge Blooms Report and Recommendation, serve this Order on the plaintiff at his last and only known address reflected on the docket, and to close this case. Ordered by Judge Kiyo A. Matsumoto on 2/2/2015. (Alagesan, Deepa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BILLY HORTON,
Plaintiff,
ORDER ADOPTING
REPORT & RECOMMENDATION

-againstTHE CITY OF NEW YORK ET AL, THE NEW
YORK CITY POLICE DEPARTMENT, NEW YORK
CITY CRIMINAL COURT COUNTY OF QUEENS,
NYC LAW DEPARTMENT, CORPORATION COUNSEL
OF THE CITY OF NEW YORK, POLICE OFFICER
REINALDO ALVAREZ, POLICE OFFICERS JOHN
DOES 1-8, ADA HARRY NUSSFORF, and ADA
DEBORAH WASSEL,
Defendants.

14-CV-4276 (KAM)(LB)

--------------------------------------- X
MATSUMOTO, United States District Judge:
Presently before the court is a Report and
Recommendation issued by Magistrate Judge Lois Bloom on January
12, 2015, recommending that the court dismiss plaintiff’s action
pursuant to Federal Rules of Civil Procedure 16(f) and
37(b)(2)(A)(v) after he failed appear at a December 10, 2014
initial pretrial conference and the rescheduled conference on
January 7, 2015.
(“R&R”).)

(ECF No. 24, Report and Recommendation

Although plaintiff was warned that a failure to appear

at the court-ordered January 7, 2015 conference would result in
Judge Bloom recommending that his case be dismissed, plaintiff
did not request an adjournment or contact Judge Bloom to show
good cause for his failure to appear.

(Id. at 3.)

Copies of

Judge Bloom’s orders were mailed to plaintiff at his last and
only known address reflected on the docket.

(ECF Nos. 15, 19.)

Notice of the Report and Recommendation was sent via
first class mail to plaintiff at his last known address on
January 12, 2015.

As explicitly noted at the end of the Report

and Recommendation, any objections to the Report and
Recommendation were to be filed within 14 days of service of the
R&R.

(Id. at 3-4.)

Because plaintiff was served by mail, the

statutory period for filing objections expired on January 29,
2015 (see Fed. R. Civ. P. 6(d)), and no objections to the Report
and Recommendation have been filed to date.
In reviewing a Report and Recommendation, the district
court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1)(C).

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Where no objection to the Report and

Recommendation has been filed, the district court “need only
satisfy itself that that there is no clear error on the face of
the record.”

Urena v. New York, 160 F. Supp. 2d 606, 609-10

(S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F. Supp. 1186, 1189
(S.D.N.Y. 1985).
Upon a review of the Report and Recommendation, and
considering that the parties have failed to object to any of
Judge Bloom’s well-grounded recommendations, the court finds no
clear error in Judge Bloom’s Report and Recommendation and hereby
affirms and adopts the Report and Recommendation as the opinion
of the court.

In adopting the Report and Recommendation, the

court finds that (1) plaintiff’s failure to comply with Judge

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Bloom’s orders was willful because Judge Bloom clearly and
repeatedly informed plaintiff of his obligation to appear at the
conferences, (2) lesser sanctions would not be effective given
plaintiff’s multiple opportunities to appear before Judge Bloom
or show cause for his failure to appear, as well as his apparent
abandonment of this action, (3) plaintiff’s repeated
noncompliance with Judge Bloom’s orders over a period of months
counsels in favor of dismissal, and (4) plaintiff was warned of
the consequences of his continued failure to comply with Judge
Bloom’s orders.

See Agiwal v. Mid Island Mortgage Corp., 555

F.3d 298, 302 (2d Cir. 2009).

Furthermore, defendants have been

prejudiced because they have been unable to obtain disclosures
from plaintiff that are necessary to defend the case and have
needlessly expended time appearing at conferences at which
plaintiff failed to appear.
The Clerk of the Court is respectfully directed to
dismiss the claims against defendants in accordance with Judge
Bloom’s Report and Recommendation, serve this Order on the
plaintiff at his last and only known address reflected on the
docket, and to close this case.

SO ORDERED.
Dated:

February 2, 2015
Brooklyn, New York
_________ /s/
Kiyo A. Matsumoto
United States District Judge

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