Sun v. Cheung

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATIONS, In line with the foregoing, the report and recommendation of Magistrate Judge Pollak, dated 3/2/07 (ECF Dkt. #7) is adopted, in its entirety, as the opinion of the Court. This action is, therefore, dismissed for failure to prosecute. Although pltff paid the filing fee to commence this action, the Court certifies, pursuant to 28 USC sec. 1915(a)(3), that any appeal would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of an appeal. The Clerk of Court is directed to enter judgment accordingly, and to close this case. (Ordered by Judge Eric N. Vitaliano on 4/06/2017) c/m Fwd. for Judgment. (Galeano, Sonia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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XIU JIAN SUN,
Plaintiff.
MEMORANDUM & ORDER
-againstl 6-cv-5734 (ENV) (CLP)
KIN CHEUNG,
Defendant.
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VITALIANO, D.J.
On October 14, 2016,pro se plaintiffXiu Jian Sun commenced this action against
defendant Kin Cheung, who is identified in the complaint as a clerk of the Supreme Court of e
State of New York, Appellate Division, Second Department. ECF Dkt. No. 1. Sun paid the
statutory filing fee in this action. See Oct. 14, 2016 Filing Fee Receipt.
After plaintiff failed to take any steps to advance this case beyond filing the comprn
and also failed to comply with several court orders despite being warned that noncompli , ce
could result in dismissal, Magistrate Judge Cheryl L. Pollak issued a report and recomme, dat on
("R&R"), dated March 2, 2017, recommending that this case be dismissed for failure to
prosecute. See ECF Dkt. No. 7. The R&R gave the required notice that any objection ha, to e
filed, in writing, within 14 days after the parties received it. Id. at 3.
Instead of filing any objection to the R&R, Sun commenced a separate lawsuit agains
Judge Pollak, attaching the R&R issued in this case as an exhibit to that new complaint.

I
tee

Ull

v. Pollak, No. I 7-cv-15 70 (E.D .N. Y. ), ECF Dkt. No. I . In that complaint, plaintiff asse1 th t,
after he received notice of Judge Pollak's R&R, "Jehovah" instructed him to sue Judge P 11
whom he dubs "Pharisees":
On the date of March 09, 2017, when the notification from United
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States District Court Eastern District of New York is received;
Jehovah, -the Lord god of host sent the messenger speaks to spiritual
Adam, -plaintiff through angel, says: "Pharisees don't even open the
door" ....
Jehovah,- the Lord god of host gives the words to servant (Plaintiff)
in the temple he made, "Trial with god's law. Apply for jury to
prevent insult and unfair behavior."
Id. at 1. 1 No response to the R&R was ever filed by Sun on this docket.

Discussion
While a district judge "must determine de novo any part of the magistrate judge's rp rt
and recommendation] that has been properly objected to" by any party, nothing in plaintils
complaint against Judge Pollak can be construed, with maximum liberality, as interposingl_suc
"specific written objections" to the R&R issued in this case. See Fed. R. Civ. P. 72(b)(2)-f3). If
anything, Sun's complaint against Judge Pollak merely confirms that he was aware of the I
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ongoing proceedings in this action against Cheung, which underscores that his disregard df co
orders and overall failure to prosecute this action was knowing and deliberate-rather th
inadvertent. So, too, was his failure to file written objection here.
The Court, therefore, finds that, with proper notice given, see ECF Dkt. No. 7 at 3 no
party has filed an objection to Judge Pollak's R&R, and the time to do so has passed. In
accordance with the applicable clear-error standard of review, see Dafeng Hengwei Textil
Aceco Indus. & Commercial Corp., 54 F. Supp. 3d 279, 283 (E.D.N.Y. 2014), the Court as

carefully reviewed the R&R, and finds it to be correct, well-reasoned, and free of any clear e or.

Plaintiffs separate action against Judge Pollak, captioned Sun v. Pollafc, No. 17-cv-1 70
(E.D .N. Y. ), was, on this date, also dismissed.

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The Court, therefore, adopts it, in its entirety, as the opinion of the Court. 2
Conclusion
In line with the foregoing, the report and recommendation of Magistrate Judge Poll

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dated March 2, 2017 (ECF Dkt. No. 7), is adopted, in its entirety, as the opinion of the Co
This action is, therefore, dismissed for failure to prosecute.
Although plaintiff paid the filing fee to commence this action, the Court certifies,
pursuant to 28 U.S.C. § l 915(a)(3), that any appeal would not be taken in good faith, and,
therefore, in forma pauperis status is denied for the purpose of an appeal. See Coppedge v.

United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 920-21, 8 L. Ed. 2d 21 (1962).
The Clerk of Court is directed to enter judgment accordingly, and to close this case
So Ordered.
Dated: Brooklyn, New York
April 6, 2017

/s/ USDJ ERIC N. VITALIANO
ERIC N. VITALIANO
United States District Judge

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Even if plaintiffs complaint against Judge Pollak could be construed as an objection to the
R&R in this case, because the Court is in full agreement with the R&R, the Court woul
adopt it, in full, even upon de novo review.

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