Thomas v. City of New York et al

Filing 41

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Finding no errors, the court adopts the thorough and well-reasoned Report and Recommendation in its entirety pursuant to 28 U.S.C. § 636(b)(1). Accordingly, the case is dismissed pursuant to Federal Ru les of Civil Procedure 37(b)(2)(A) and 41(b). The Clerk of Court is respectfully directed to enter judgment in favor of defendant, serve a copy of this Memorandum and Order, the judgment, and an appeals packet on plaintiff, note service on the docket, and close the case. Ordered by Judge Kiyo A. Matsumoto on 9/19/2017. (Grover, Vanish)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X

NOT FOR PUBLICATION

JAMES THOMAS,
Plaintiff,
-against-

CITY OF
OFFICER
OFFICER
OFFICER
OFFICER
CAPTAIN

MEMORANDUM AND ORDER
15-CV-5153(KAM)(RER)

NEW YORK; CORRECTION
EDWIN MONTANEZ; CORRECTION
MICHAEL LYNCH; CORRECTION
GERALD GATON; CORRECTION
DANIELOR BLANCO; and
BRIAN O’HARA,
Defendants.

----------------------------------X
MATSUMOTO, United States District Judge:
Before the court is a Report and Recommendation (ECF No.
38, Report and Recommendation (“R&R”)) from Magistrate Judge Ramon
Reyes recommending that the court dismiss pro se plaintiff James
Thomas’ action, with prejudice, for failure to prosecute pursuant
to Federal Rules of Civil Procedure 37 and 41.

The R&R instructed

that any objections to the R&R be submitted within fourteen (14)
days of receipt of the R&R.

(See ECF No. 38, R&R at 3.)

Plaintiff

was served the R&R on November 18, 2016, and accordingly, the date
for filing any objections has since expired.

Plaintiff has not

filed any objections to the R&R, and for the reasons set forth
below, the court adopts the thorough and well-reasoned R&R in its
entirety and dismisses plaintiff’s complaint.

Plaintiff James Thomas, proceeding pro se, commenced the
action on September 1, 2015, against the City of New York and
numerous correction officers at the Department of Correction,
alleging that he was physically attacked and the subject of
unjustified use of force by the correction officers.
Complaint
Magistrate

at

4.)

Judge

While
Reyes,

under

the

plaintiff

pretrial

refused

(ECF No. 1,

supervision
participate

to

of
in

discovery, failed to comply with court orders ordering him to
provide defendants with responses to their discovery demands, and
failed to appear for a scheduled telephone conference.
minute

order

dated

June

defendants

regarding

telephonic

status

24,

2016;

plaintiff’s

conference.)

ECF

refusal

No.

36,

to

Plaintiff

(See ECF

letter

from

participate
was

in

advised

by

Magistrate Judge Reyes that his continued failure to respond to
defendants’ discovery demands would result in a recommendation
that his case be dismissed for lack of prosecution and for failure
to follow orders of the court.

(ECF order dated August 22, 2016.)

After plaintiff failed to respond to discovery, or otherwise
respond to the court’s order, Magistrate Judge Reyes issued the
R&R

recommending

that

the

case

be

dismissed

pursuant

Rule

37(b)(2)(A) for failure to obey an order to provide discovery, and
Rule 41(b) for failure to prosecute or to comply with a court
order.

Plaintiff has not submitted any objections to the R&R.

2 

A district court “may accept, reject, or modify, in whole
or in part, the findings and recommendations made by the magistrate
judge” in an R&R.

28 U.S.C. § 636(b)(1)(C).

Where no objections

are made, the court may adopt the R&R without de novo review, see
Thomas v. Arn, 474 U.S. 140, 150 (1985), and need only review for
clear error on the face of the record.

See Fed. R. Civ. P. 72(b);

Baptichon v. Nev. State Bank, 304 F. Supp. 2d 451, 453 (E.D.N.Y.
2004), aff’d, 125 F. App’x 374 (2d Cir. 2005).
The court has reviewed the unopposed R&R for clear error,
including the factors prescribed by the Second Circuit for the
court’s consideration of dismissals pursuant to Federal Rules of
Civil Procedure 37 and 41.

See Lee v. Katz, 669 F. App’x 57, 58

(2d Cir. 2016) (summary order); Drake v. Norden Sys., Inc., 375
F.3d 248, 254 (2d Cir. 2004).
the

R&R

in

its

entirety

The court finds no error and adopts

pursuant

to

28

U.S.C.

§

636(b)(1).

Accordingly, the case is dismissed pursuant to Federal Rules of
Civil Procedure 37(b)(2)(A) and 41(b).

The Clerk of Court is

respectfully directed to enter judgment in favor of defendant,
serve a copy of this Memorandum and Order, the judgment, and an
appeals packet on plaintiff, note service on the docket, and close
the case.
SO ORDERED.
Dated:

September 19, 2017
Brooklyn, New York

___________/s/_______________
Hon. Kiyo A. Matsumoto
United States District Judge
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