Ahmed v. Gumusdere

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATIONS: Therefore, the Court adopts in large part Magistrate Judge Bloom's R&R and dismisses Plaintiff's remaining First Amendment claim against Gumusdere without prejudice. Pursuant to 28 U.S.C. § 1 915(a)(3), the Court DENIES in forma pauperis status for any appeal of this Order adopting in large part Magistrate Judge Bloom's R&R, and the Court CERTIFIES that any such appeal would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is also directed to close this case. Ordered by Judge Carol Bagley Amon on 11/15/2017. (fwd for judgment) (Fernandez, Erica)

UNITED STATES DISTRICT COURT

U.s.

EASTERN DISTRICT OF NEW YORK

^

-X

^ mv 16 2m

NAVID AHMED,

BROOKLYN OFFICE

Plaintiff,

NOT FOR PUBLICATION
ORDER

-against-

14-CV-6080(CBA)
(SJB)

THE CITY OF NEW YORK;D.O.C. FOR
THE CITY OF NEW YORK;and TURHAN

GUMUSDERE,* Warden, AMKC,
Defendants.
X

AMON,United States District Judge:

The Court has received the Report and Recommendation("R&R")of the Honorable Lois

Bloom, United States Magistrate Judge,^ for the instant action filed by pro se Plaintiff Navid
Ahmed. For the reasons stated below, the Court adopts the R&R in large part and dismisses
Plaintiffs claims.

As a practicing Muslim who was detained at Anna M.Kross Center("AMKC ) Rikers
in
Island, Plaintiff asserts First Amendment claims against the named Defendants under 42 U.S.C.

§ 1983,contending that on or around July 17,2014,they prevented him and his wife,his permitted

guest, from attending a celebratory meal for Eid ul Fitr, a holiday that marks the end of30 days of
fasting during Ramadan. tSee D.E.# 1 at 8; D.E.# 4 at 3.) The Complaint lists Plaintiffs place
of detainment as AMKC, 1818 Hazel Street, East Elmhurst, New York 11370 (the AMKC

address"). (D.E.# 1.) The Complaint was filed with the Court on October 14, 2014. (Id)
'In the Complaint, Plaintiff named "Turban Gumsdere" as a Defendant. (See D.E. # 1.) Plaintiff has not formally
filed a rnotion to amend the caption, but in a January 8, 2016, letter, he stated that the last name of Defendant is
"Gumusdere." (See D.E.# 20.) The Court treats the letter as a motion for leave to amend the caption from "Turhan
Gumsdere" to "Turhan Gumusdere," and the Court finds that the requirements for Federal Rule of Civil Procedure 15

are satisfied. See Fed. R. Civ. P. 15(a)(noting that leave to amend "shall be freely given when justice so requires").
The Clerk of Court is directed to amend the caption as such.

2 On September 22,2017,the case was reassigned to the Honorable Sanket J. Bulsara, United States Magistrate Judge.
(D.E. dated Sept. 22,2017.)
1

In a Memorandum and Order dated June 22, 2015, the Court granted Plaintiff's request to

proceed in forma pauperis. dismissed the First Amendment claims against Defendants The City of
New York and D.O.C. for The City of New York, and permitted the First Amendment claim

against Defendant Turhan Gumusdere ("Gumusdere"). (See D.E. # 4.) A copy of the
Memorandum and Order was sent to Plaintiffs AMKC address, but it was returned to the Court

as undeliverable. (S^ D.E.# 6.) In a letter to the Court dated September 4, 2015, Gumusdere's

counsel represented that Plaintiff was released from custody on February 10, 2015, and that
Plaintiff"has not provided Defendant or the Court with an updated means of contact." (D.E.# 7
at 1.) On September 8,2015, Magistrate Judge Bloom noted that,"[sjhould plaintifffail to contact

the Court to provide a current address by October 9, 2015, [she] will recommend that this case
should be dismissed without prejudce." (D.E.# 8 at 1-2.) A copy of Magistrate Judge Bloom's

September 8, 2015, Order was sent to Plaintiffs AMKC address, and it was returned as
undeliverable. (D.E.# 9.)

On October 9, 2015, Gumusdere filed a letter motion to dismiss for lack of prosecution
because Plaintiff "has not advised either the Court or [Gumusdere's counsel] of his current

whereabouts." (D.E.#11.) In an Order dated October 22,2015, Magistrate Judge Bloom denied

the motion, noting that Plaintiff"has apparently been re-incarcerated," and "remind[ing]" Plaintiff
"that it is his responsibility to keep the Court informed of his current address." (D.E.# 12.) She

also granted Gumusdere's motion for an extension of time to answer by November 6,2015. (Id.)
A copy of Magistrate Judge Bloom's October 22, 2015, Order was mailed to Plaintiffs AMKC
address, and it was returned as undeliverable. (See D.E. # 16.) Gumusdere filed a motion to
dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

(D.E. # 13-15.) In a Scheduling Order dated November 9, 2015, the Court gave Plaintiff until
January 8,2016,to respond to Gumusdere's motion. (D.E. dated Nov. 9, 2015.)

On November 13, 2015, Magistrate Judge Bloom received an undated letter by Plaintiff
that included the address "50 Jay Street, Brooklyn, NY, 11201"(the "Jay Street address"). (D.E.

# 17.) In the letter. Plaintiffclarified that he had been detained in Rikers Island "for a few months"
after the alleged incident, that he had not received a response to his Complaint, and that he "still
would like to proce[ed] with this case." tld.l In his opposition brief filed February 4, 2016,
Plaintiff included the Jay Street address and a contact phone number; added a claim against
Gumusdere under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42

U.S.C. §§ 2000cc et sea.: and otherwise addressed Gumusdere's arguments for dismissal. (D.E.

# 21.) In a Memorandum and Order dated September 26, 2016,the Court dismissed the RLUIPA
claim on mootness grounds but allowed the First Amendment damages claim to proceed. (S^

D.E.#24 at 8.) Magistrate Judge Bloom issued a Scheduling Order on September 27,2016,setting
deadlines for Gumusdere's answer and the initial pretrial conference. (D.E.# 25.) Copies of the

Court's September 26, 2016, Memorandum and Order and Magistrate Judge Bloom's September
27, 2016, Scheduling Order were sent to Plaintiff at his Jay Street address, but they were returned
as imdeliverable. (D.E.# 28-29.)

Gumusdere answered the Complaint, and on October 31,2016, his counsel appeared at the

initial pretrial conference. (D.E. it 26, 30.) However, Plaintiff did not appear at the conference.

(D.E.# 30.) Moreover, Gumusdere's counsel notified Magistrate Judge Bloom that he had mailed
a copy ofthe answer to Plaintiff but that it was returned as imdeliverable. (See D.E.# 31 at 1.) In
an Order dated November 3,2016,Magistrate Judge Bloom warned that, even with prose litigants,

"[i]t is plaintiffs responsibility to keep the Court informed of his current address," and that,"[i]f

plaintiff fails to contact the Court to provide a current address by" December 2, 2016, she "will
recommend that this action should be dismissed." (Id. at 1—2.) A copy of Magistrate Judge

Bloom's November 3, 2016, Order was sent to Plaintiffs Jay Street address, and it was returned

as undeliverable. (D.E.# 32.) On December 23, 2016, Magistrate Judge Bloom issued the R&R
now before the Court, noting that Plaintifffailed to contact her and recommending that this Court

dismiss Plaintiffs action without prejudice. (D.E.# 33 at 4.) A copy of the R&R was delivered

to Plaintiffs Jay Street address,and there is no record ofthe copy being returned as undeliverable.
No party has objected to the R&R,and the time for doing so has passed. The Court"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)(1). To accept portions of the R&R "to which no timely
objection has been made, a district court need only satisfy itself that there is no clear error on the
face of the record." Jarvis v. N. Am. Globex Fund. L.P.. 823 F. Supp. 2d 161, 163 (E.D.N.Y.

2011)(quoting Wilds v. United Parcel Serv.. 262 F. Supp. 2d 163,169(S.D.N.Y. 2003)).
The Court adopts the Magistrate Judge Bloom's carefully reasoned R&R in all but one

point. Magistrate Judge Bloom noted that "[t]he Court has no other contact information for
plaintiffother than the mailing address on the docket listed as 50 Jay Street,Brooklyn,New York."
(D.E. # 33 at 4.) This observation was clearly erroneous; Plaintiff provided his contact phone
number in his opposition brief to Gumusdere's motion to dismiss,(see D.E.# 21 at 1).
However, the Court finds no error—let alone a clear one—in recommending dismissal
based on Plaintiffs failure to prosecute. In reviewing such dismissals, the Second Circuit

considers "five principal factors": (1) "the duration of the plaintiffs failures"; (2) "whether

plaintiff had received notice that further delays would result in dismissal"; (3) "whether the
defendant is likely to be prejudiced by further delay";(4)"whether the districtjudge has taken care

to strike the balance between alleviating court calendar congestion and protecting a party's right

to due process and a fair chance to be heard"; and (5)"whether the judge has adequately assessed
the efficacy oflesser sanctions." Shannon v. Gen. Elec. Co.. 186 F.3d 186,193—94(2d Cir. 1999)

(quoting Nita v. Conn. Den't of Envtl. Prot.. 16 F.3d 482, 485 (2d Cir. 1994)). However,

Magistrate Judge Bloom correctly stated that this Court"need only provide an explanation for the
dismissal rather than discuss all" five factors. (D.E.# 33 at 4 n.3 (citation omitted).)

Upon review of the record, the Court commends Magistrate Judge Bloom for her
remarkable patience with Plaintiff over the course of the litigation. Despite the leeway he has
received. Plaintiff"has not contacted the Court since February 2016"; multiple orders sent to his
last known addresses have been returned as undeliverable; "Plaintiff has failed to respond to two

Court orders"; and Plaintiff has been "explicitly warned twice that if he failed to contact the Court,

[Magistrate Judge Bloom] would recommend dismissal." (D.E.# 33 at 4 & n.3.) As Magistrate

Judge Bloom correctly explained,(see D.E. # 33 at 3—4), the weight of authority in this Circuit
holds that cases "cannot proceed without a current address for the plaintiff[,] and [that] failure to
maintain such an address with the Court is a ground for" dismissal without prejudice, see, e.g.,

Lanev v. Ramirez. No. lO-CV-9063 (JGK), 2011 WL 6594491, at *1 (S.D.N.Y. Dec. 22, 2011),
Whitaker v. N.Y.C. Police Den't. No. 86-CV-238(SWK), 1989 WL 37678, at *1 (S.D.N.Y. Apr.

11, 1989). Even though the Court had access to Plaintiffs phone number,there is no obligation

on the part of the Court, the Clerk of Court, the Pro Se Office, or Magistrate Judge Bloom to call
him and keep him apprised ofcourt developments. This is Plaintiffs claim to prosecute, and "the
very fact that[Plaintiff] has been inaccessible [since February 2016]—without notifying the Court,

[Gumusdere], or the Pro Se Office of a change of address—strongly suggests that he is not
diligently pursuing this claim." Dong v. United States, No.02-CV-7751 (SAS),2004 WL 385117,

at *3 (S.D.N.Y. Mar. 2, 2004). Plaintiffs "totally unexplained disappearance is manifestly
unreasonable,and therefore presumptively prejudices" Gumusdere. Id.(citations omitted). "There
is no reason for this case to languish on the Court's docket or to hang over the head of[Gumusdere]

if [Plaintiff] is unwilling or unable to prosecute it." Id Or, as Magistrate Judge Bloom put it,
"Plaintiff has apparently abandoned the action and it would be futile to allow the case to continue."
(D.E. # 33 at 4.)

Therefore, the Court adopts in large part Magistrate Judge Bloom's R&R and dismisses

Plaintiffs remaining First Amendment claim against Gumusdere without prejudice. Pursuant to

28 U.S.C. § 1915(a)(3), the Court DENIES in forma nauneris status for any appeal of this Order

adopting in large part Magistrate Judge Bloom's R&R,and the Court CERTIFIES that any such
appeal would not be taken in good faith. ^Coppedge v. United States, 369 U.S. 438, 444-45
(1962).
The Clerk of Court is also directed to close this case.
SO ORDERED.

Dated: November

,2017

Brooklyn, New York

s/Carol Bagley Amon

Tarol Bagley Ahion
United States District Judge