Ward v. City of New York et al

Filing 124

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS: No party has objected to the R&R, and the time for doing so has passed. When deciding whether to adopt an R&R, a district 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 those 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) (internal quotation marks and citation omitted). I have reviewed the record and, finding no clear error, I adopt the R&R as the opinion of the Court. Accordingly, Defendant's third motion to dismiss for failure to prosecute, (D.E. # 117 ), is granted, and the action is dismissed with prejudice. Ordered by Judge Carol Bagley Amon on 11/9/2020. (fwd for judgment) (Fernandez, Erica)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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KENNETH J. WARD, JR.,
Plaintiff,
NOT FOR PUBLICATION
MEMORANDUM & ORDER
15-CV-4175 (CBA) (ST)

-against-

CITY OF NEW YORK, et al.,
Defendants.
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AMON, United States District Judge:

On July 15, 2015, Plaintiff Kenneth Ward filed this action pro se against the City of New

York and numerous municipal employees seeking injunctive and declaratory relief and monetary
damages under 42 U.S.C. § 1983 for alleged false arrest and malicious prosecution stemming from
his arrest on April 16, 2014. (ECF Docket Entry (“D.E.”) # 1.)
On September 7, 2018, Defendant Carl Diaquoi (“Defendant”), the arresting officer, served
the First Set of Interrogatories and Request for Production of Documents on Plaintiff by handdelivery. (D.E. # 98.) Plaintiff’s responses were due by October 9, 2018. (Id.) On November 30,
2018, Magistrate Judge Steven L. Tiscione granted Defendant’s motion to compel Plaintiff’s
discovery responses by December 31, 2018. (D.E. # 99.) Plaintiff failed to comply with that
deadline and has since failed to comply with multiple deadline extensions, despite express
warnings that his continued failure to produce the ordered discovery would result in the dismissal
of his case.

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In a Report and Recommendation (“R&R”) dated May 15, 2019, Magistrate Judge Tiscione
recommended that the case be dismissed with prejudice for failure to prosecute and failure to
comply with a court order. (D.E. # 107.) By order entered August 9, 2019 (D.E. # 108), I declined
to adopt the R&R and denied Defendant’s motion to dismiss the case for failure to prosecute. In
that order, however, I warned Plaintiff that “further unexcused delays will not be tolerated” and
that if he “fails to comply with this deadline again, the Court will dismiss his case pursuant to Rule
41(b).” (Id. at 4.)
On May 15, 2020, Defendant moved for the third time to dismiss this action with prejudice
for lack of prosecution. (D.E # 117.) I referred that motion to the Honorable Steven L. Tiscione
for R&R. (Order dated 05/27/20.) Magistrate Judge Tiscione issued a thorough and well-reasoned
R&R recommending that the Court grant the motion and dismiss the instant action with prejudice
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (D.E. # 122.)
No party has objected to the R&R, and the time for doing so has passed. When deciding
whether to adopt an R&R, a district 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
those 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) (internal quotation marks and citation omitted).
I have reviewed the record and, finding no clear error, I adopt the R&R as the opinion of
the Court. Accordingly, Defendant’s third motion to dismiss for failure to prosecute, (D.E. # 117),
is granted, and the action is dismissed with prejudice.

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SO ORDERED.

Dated: November 9, 2020
Brooklyn, New York

/s/ Carol Bagley Amon
Carol Bagley Amon
United States District Judge

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