Coleman v. Ortiz et al

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATIONS of Magistrate Judge Bloom. No objections having been received. The Court has reviewed this Report and Recommendation and for the reasons stated, adopts it as the Order of this Court. The case is dismissed. ( Ordered by Judge Brian M. Cogan on 12/5/2016 ) c/m *Forwarded for jgm. (Guzzi, Roseann)

FILED

C/M

us

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

IN CLERK'S OFFICE
DISTRICT COURT 0 NY

E

NOV 03 2016

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BROOKLYN OFFICE

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GLADYS COLEMAN,

REPORT AND RECOMMENDATION
16 CV 1184 (BMC)(LB)

Plaintiff,
-against-

SEE ENDORSED ORDER LAST PAGE
DETECTIVE ORTIZ,
Defendant.

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BLOOM, United States Magistrate Judge:

This case has been referred to me for all pretrial purposes. Prose plaintiff has failed to appear
at two Court-ordered conferences in this matter and has not contacted the Court or defendants' counsel
to request an adjournment or to explain her absences. Accordingly, it is respectfully recommended
that plaintiffs action should be dismissed pursuant to Rules 16(f) and 37(b)(2)(A)(v) of the Federal
Rules of Civil Procedure.
BACKGROUND

Plaintiff filed this civil rights action on February 22, 2016 alleging that New York City Police
Detective Felix Ortiz violated her constitutional rights. (ECF No. 2.) On August 17, 2016, defendant
Ortiz filed his answer to the complaint and the Court, on August 18, 2016, scheduled an initial
conference for October 4, 2016. (ECF No. 18.) On October 4, 2016, the Court held the conference;
however, plaintiff failed to appear and failed to contact the Court to request an adjournment of the
conference. Defendant's counsel appeared on time and was prepared to proceed.
In an abundance of caution, the Court reset the initial conference for November 3, 2016 and
explicitly warned plaintiff that if she failed to timely appear that the Court would recommend
dismissal of her action pursuant to Rule 16(f) and 37(b)(2)(A)(v) of the Federal Rules of Civil
Procedure. (ECF No. 20.) Plaintiff failed to appear for the November 3, 2016 conference. Again,
plaintiff failed to contact the Court or defendant's counsel to request an adjournment.

DISCUSSION
"[A]ll litigants, including pro ses, have an obligation to comply with court orders," and to
diligently advance their case; failure to do either may result in dismissal of the action. Agiwal v. Mid
Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009). Rule 16(t) of the Federal Rules of Civil
Procedure provides: "[o]n motion or on its own, the court may issue any just orders, including those
authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney ... fails to appear at a scheduling or
other pretrial conference" or "fails to obey a scheduling or other pretrial order." Fed. R. Civ. P.
16(t)(l )(A),(C). Under Rule 37(b)(2)(A)(v), the Court may dismiss the complaint for a party's failure
to comply with a Court order. Fed. R. Civ. P. 37(b)(2)(A) ("[T]he court where the action is pending
may issue further just orders ... includ[ing] the following: ... (v) dismissing the action or proceeding
in whole or in part."). The sanction of dismissal "may be imposed even against a plaintiff who is
proceeding pro se, so long as warning has been given that noncompliance can result in dismissal."
Valentine v. Museum of Modem Art, 29 F.3d 47, 49 (2d Cir. 1994).
Plaintiff has failed to appear at two Court-ordered conferences. When plaintiff failed to appear
for the October 4, 2016 conference, the Court scheduled another conference to give plaintiff one last
chance. Plaintiff was explicitly warned that if she failed to timely appear on November 3, 2016, the
case would be dismissed. Despite this warning, plaintiff failed to appear for the conference. The
Court need not afford plaintiff unlimited opportunities to appear in this action which she has
apparently abandoned. No lesser sanction than dismissal is appropriate under these circumstances.

CONCLUSION
Accordingly, it is respectfully recommended that plaintiffs action should be dismissed
pursuant to Rules 16(t) and 37(b)(2)(A)(v) of the Federal Rules of Civil Procedure.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(l) and Rule 72(b) of the Federal Rules of Civil Procedure, the

parties shall have fourteen (14) days from service of this Report to file written objections. See also
Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of
the Court. Any request for an extension of time to file objections must be made within the fourteenday period. Failure to file a timely objection to this Report generally waives any further judicial
review. Marcella v. Capital Dist. Physician's Health Plan, Inc., 293 F.3d 42 (2d Cir. 2002); Small v.
Sec'y of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989); see Thomas v. Arn, 474 U.S. 140
(1985).
SO ORDERED.

/S/ Judge Lois Bloom
R1s'BLOOM
United States Magistrate Judge

Dated: November 3, 2016
Brooklyn, New York

No objections have been received. The Court has reviewed this Report and Recommendation and
for the reasons stated, adopts it as the Order of this Court. The case is dismissed.
SO ORDERED: 12/5/16

Digitally signed by
Brian M. Cogan
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U.S.D.J.