Fattah v. City of New York et al

Filing 31

MEMORANDUM & ORDER [ADOPTING REPORT AND RECOMMENDATION]: The Court has reviewed the unopposed Report and Recommendation ("R&R"), and, finding no clear error, the Court adopts Judge Orenstein's 30 R&R in its entirety pursuan t to 28 U.S.C. § 636(b)(1). The Court dismisses the Amended Complaint, with prejudice, for failure to prosecute. The Clerk of Court is directed to close this case. SO ORDERED by Judge Margo K. Brodie, on 10/15/2015. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------SAMER FATTAH,
Plaintiff,

MEMORANDUM & ORDER
14-CV-7317 (MKB) (JO)

v.
CITY OF NEW YORK, P.O. BRENT
CURRY and P.O. NABIL LAAFAR
Individually and in their official capacities,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Samer Fattah commenced this action on December 16, 2014, against Defendants
the City of New York (the “City”), police officer Brent Curry and another unnamed officer,
alleging violations of the First, Fourth, Fifth, Eight and Fourteenth Amendments, excessive force
and municipal liability, pursuant to 42 U.S.C. §§ 1983 and 1988. (Compl. ¶¶ 19–36, Docket
Entry No. 1.) On March 16, 2015, Plaintiff filed an Amended Complaint, adding claims against
police officer Nabil Lafaar and removing the unnamed officer Defendant. By Report and
Recommendation dated September 22, 2015 (“R&R”), Magistrate Judge James Orenstein
recommended that the Court dismiss Plaintiff’s claims with prejudice for failure to prosecute.
(R&R 1, Docket Entry No. 30.) For the reasons set forth below, the Court adopts the R&R in its
entirety and dismisses the Amended Complaint for failure to prosecute.
I.

Background
Plaintiff commenced this action on December 16, 2014, against Defendants the City,

Curry and another unnamed officer. (Compl. 1.) The City answered Plaintiff’s Complaint on
March 10, 2015. (Answer, Docket Entry No. 6.) By Amended Complaint filed March 16, 2015,

Plaintiff added allegations against Lafaar and removed the unnamed officer Defendant. (Am.
Compl. ¶¶ 9, 17, Docket Entry No. 8.) By affidavits filed April 25, 2015, Plaintiff attested to
service of the Summons and Amended Complaint on Curry and Lafaar. (Docket Entry Nos. 15,
16.) Defendants answered the Amended Complaint on June 2, 2015. (Answer to Am. Compl.,
Docket No. 19.)
On May 6, 2015, counsel for Plaintiff filed a motion with the Court seeking leave to
withdraw as counsel for Plaintiff. (Mot. to Withdraw as Att’y, Docket Entry No. 18.) In light of
the motion, Judge Orenstein scheduled an in-person hearing for June 8, 2015, and required
Plaintiff to attend. (May 18, 2015 Scheduling Order.) Plaintiff failed to appear for the
conference. (June 8, 2015 Min. Entry, Docket Entry No. 20.) Judge Orenstein rescheduled the
conference to June 23, 2015, directed Plaintiff to appear, and warned Plaintiff that “failure to
comply may result in sanctions including a recommendation that the case be dismissed for failure
to prosecute.” (Id.) Judge Orenstein directed Plaintiff’s counsel “to use his best efforts to inform
the plaintiff of the potential consequences of failing to appear as required at the next
conference.” (Id.)
Plaintiff failed to timely appear at the June 23, 2015 conference. (Scheduling Order,
Docket Entry No. 23.) The conference was rescheduled to June 30, 2015, and Judge Orenstein
again warned Plaintiff that if he “fail[ed] to comply, I will recommend dismissal of his case for
failure to prosecute.” (Id.) Plaintiff appeared at the next conference, held on July 7, 2015, and,
with Plaintiff’s consent, Judge Orenstein granted counsel’s motion to withdraw as Plaintiff’s
attorney. (Min. Entry for Status Conference held on July 7, 2015, Docket Entry. No. 26.)
After the July 7 conference, Plaintiff failed to take any further action to prosecute his
case. (R&R 2.) Plaintiff failed to appear at status conferences scheduled for September 10, 2015

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and September 17, 2015, and failed to otherwise communicate with the Court. (Id. at 2.) On
September 22, 2015, Judge Orenstein recommended that Plaintiff’s claims be dismissed with
prejudice for failure to prosecute. (Id. at 4.) Judge Orenstein directed objections to be filed by
October 9, 2015. (Id.) No objections were filed.
II. Discussion
A district court reviewing a magistrate judge’s recommended ruling “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)(C). “Failure to object to a magistrate judge’s report and recommendation
within the prescribed time limit ‘may operate as a waiver of any further judicial review of the
decision, as long as the parties receive clear notice of the consequences of their failure to
object.’” Sepe v. New York State Ins. Fund, 466 F. App’x 49, 50 (2d Cir. 2012) (quoting United
States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997)); see also Almonte v. Suffolk Cty., 531 F.
App’x 107, 109 (2d Cir. 2013) (“As a rule, a party’s failure to object to any purported error or
omission in a magistrate judge’s report waives further judicial review of the point.” (quoting
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003))); Wagner & Wagner, LLP v. Atkinson,
Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010) (“[A] party
waives appellate review of a decision in a magistrate judge’s Report and Recommendation if the
party fails to file timely objections designating the particular issue.”).
The Court has reviewed the unopposed R&R, and, finding no clear error, the Court
adopts Judge Orenstein’s R&R in its entirety pursuant to 28 U.S.C. § 636(b)(1).

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III. Conclusion
The Court dismisses the Amended Complaint, with prejudice, for failure to prosecute.
The Clerk of Court is directed to close this case.
SO ORDERED:

s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: October 15, 2015
Brooklyn, New York

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