Orlando v. City of New York et al

Filing 22

ORDER: The Court adopts the Report and Recommendation and dismisses the action for failure to prosecute. The Clerk of Court is directed to close this case. Ordered by Judge Margo K. Brodie on 11/6/2018. (Brucella, Michelle)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------LISA ORLANDO,
Plaintiff,
v.

ORDER
17-CV-2001 (MKB) (CLP)

THE CITY OF NEW YORK and JOHN DOES 1-5,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Lisa Orlando, proceeding pro se, commenced the above-captioned action on
April 6, 2017, against Defendants the City of New York and John Does 1-5. (Compl., Docket
Entry No. 1.) Plaintiff asserts claims for assault, battery, false arrest, malicious prosecution,
abuse of process, denial of equal protection, and municipal liability. (See generally id.) By
Report and Recommendation dated June 14, 2018, Magistrate Judge Cheryl Pollak sua sponte
recommended that the Court dismiss Plaintiff’s claims for failure to prosecute (the “R&R”).
(R&R 3, Docket Entry No. 21.) For the reasons set forth below, the Court adopts the R&R and
dismisses Plaintiff’s claims.
I.

Background
On April 7, 2017, attorney Harlan Garrett Greenberg, on behalf of the Law Office of

Harlan Greenberg, filed a notice of appearance as counsel for Plaintiff. (Notice of Appearance
dated Apr. 7, 2017.) On October 25, 2017, Greenberg moved to withdraw as counsel, citing a
deterioration of the attorney-client relationship due to his inability to contact Plaintiff. (Mot. to
Withdraw, Docket Entry No. 15.) Judge Pollak ordered Plaintiff, her counsel, and Defendants’
counsel to attend a conference on November 15, 2017. (See Scheduling Order, Docket Entry No.

16.) Plaintiff failed to appear. (Minute Entry dated Nov. 15, 2017, Docket Entry No. 18.) Judge
Pollak granted counsel’s motion to withdraw. (Id.) On December 7, 2017, Judge Pollak ordered
Plaintiff to notify the Court in writing by January 5, 2018, whether she had retained new counsel
or planned to proceed pro se (“December 2017 Order”). (December 2017 Order, Docket Entry
No. 19.) Judge Pollak also ordered Plaintiff to attend a status conference on January 24, 2018
and notified Plaintiff that if she failed to appear at the conference she would recommend that the
case be dismissed. (Id.) A copy of Judge Pollak’s December 2017 Order was mailed to Plaintiff
on December 7, 2017, at the address she provided to the Court and was not returned. Plaintiff
failed to appear at the January 24, 2018 status conference. (Minute Entry dated Jan. 25, 2018.)
On June 14, 2018, Judge Pollak sua sponte issued the R&R recommending that the Court
dismiss Plaintiff’s claims without prejudice for failure to prosecute. (R&R 3.) The R&R was
mailed to Plaintiff. No party has objected to the R&R.
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). “[F]ailure to object timely to a magistrate judge’s report 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.” Eustache v. Home Depot U.S.A., Inc.,
621 F. App’x 86, 87 (2d Cir. 2015) (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,

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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.” (citations omitted)).
The Court has reviewed the unopposed R&R and, finding no clear error, adopts the R&R
in its entirety pursuant to 28 U.S.C. § 636(b)(1).
III. Conclusion
For the reasons discussed above, the Court dismisses the action 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: November 6, 2018
Brooklyn, New York

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