McIver v. New York City Police Department et al

Filing 56

ORDER ADOPTING REPORT AND RECOMMENDATIONS as to 55 Report and Recommendations of Magistrate Judge Bloom. Plaintiff has failed to file any objections to Judge Bloom's Report and Recommendation. The Court has reviewed it and finds ample cause for dismissal. The R&R is therefore adopted as the Order of this Court and the case is dismissed. ( Ordered by Judge Brian M. Cogan on 5/19/2020 ) *forwarded for jgm. Copy will be mailed to plaintiff w/jgm. (Guzzi, Roseann)

Case 1:18-cv-00333-BMC-LB Document 56 Filed 05/19/20 Page 1 of 3 PageID #: 157

C/M

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ALTARIQ G. MCIVER,
Plaintiff,

REPORT & RECOMMENDATION
18 CV 333 (BMC)(LB)

-againstSEE ENDORSED ORDER LAST PAGE

POLICE OFFICER THOMAS REDMOND,
Defendant.
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BLOOM, United States Magistrate Judge:

This pro se civil rights case was referred to me for all pretrial purposes. Plaintiff has failed
to comply with the Court’s Order to respond to defendant’s discovery requests. Plaintiff also failed
to appear at the January 28, 2020 Court-ordered telephonic conference and to respond to the
Court’s Order to Show Cause. I therefore respectfully recommend that plaintiff’s 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 pro se civil rights action on January 16, 2018,1 alleging that defendant
used excessive force against him. ECF No. 1. Specifically, plaintiff alleges that he
was involved in a police chase after fleeing from a robbery. After the vehicle I was
in crashed[,] I jumped out and started to run from the police. It was winter time and
there was snow and ice on the ground and I fell . . . after slipping on some ice. After
I fell[,] the Officer began firing shots at me while I was face down on the ground.
He fired between 5 to 7 shots. I was struck in my right torso along my rib-cage from
my armpit to my waist.
Id. Plaintiff, now living in North Carolina, appeared by telephone for four Court conferences.2
ECF Nos. 32, 37, 43, 50. During the December 30, 2019 conference, plaintiff was aware his
response to defendant’s discovery requests was overdue, stated that his response would be

1

Plaintiff paid the filing fee to commence this action. ECF No. 7. However, due to a ministerial error, the filing fee
was applied to a different action and plaintiff’s complaint was dismissed. ECF Nos. 5–7. Plaintiff moved to reopen
his case after filing a notice of appeal. ECF Nos. 8–9. The Court vacated the March 22, 2018 judgment and reopened
the case. ECF No. 16. However, only plaintiff’s claims against Officer Thomas Redmond were permitted to proceed.
Id.
2
The Court held these conferences by telephone to accommodate plaintiff. After several Court Orders sent to plaintiff
were returned as undeliverable, plaintiff provided his contact information during a telephone conference on March 19,
2019. ECF No. 33
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completed shortly, and requested an extension of time to respond until January 3, 2020. The Court
granted plaintiff’s request and ordered him to execute releases and to respond to defendant’s
outstanding discovery requests by January 3, 2020. ECF No. 51. Plaintiff failed to do so and did
not contact defendant’s counsel or the Court to request more time. ECF No. 52. Furthermore,
plaintiff failed to appear for the January 28, 2020 Court-ordered telephonic conference without
notice to defendant’s counsel or the Court.
I ordered plaintiff to show good cause why he failed to comply with the Court’s Order to
respond to defendant’s discovery requests and why he failed to appear for the January 28, 2020
Court-ordered telephonic conference. Id. I explicitly warned plaintiff that if he failed to show good
cause by March 5, 2020, I would recommend that this case should be dismissed. Id. The Order
was sent to plaintiff at the address he provided, where he previously received Court Orders. ECF
No. 54. The Order has not been returned to the Court.
DISCUSSION
Rule 16(f) 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(f)(1). 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 a warning has been given that noncompliance can result in dismissal.” Valentine v. Museum of
Modern Art, 29 F.3d 47, 49 (2d Cir. 1994); see also Agiwal v. Mid Island Mortg. Corp., 555 F.3d
298, 302–03 (2d Cir. 2009) (failure of pro se litigant to comply with court orders may result in
sanctions, including dismissal with prejudice).
Plaintiff failed to comply with the Court’s Order to respond to defendant’s outstanding
discovery requests by the deadline that he had proposed, and failed to appear for the January 28,
2020 Court-ordered telephonic conference. I ordered plaintiff to show good cause why this case
should not be dismissed for his failure to comply with the Court’s Order and for his failure to
appear. I warned plaintiff that I would recommend that his case should be dismissed under Federal
Rules of Civil Procedure 16(f) and 37(b)(2)(A) if he failed to show good cause by March 5, 2020.
2

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ECF No. 52. Despite this warning, plaintiff has not responded. Plaintiff’s failure to comply with
the Court’s Orders makes it impossible to proceed in this action. This is plaintiff’s action to
vindicate his rights. The Court need not afford plaintiff unlimited opportunities to litigate his
claims. Plaintiff has apparently abandoned this action. No lesser sanction than dismissal is
appropriate under these circumstances.
CONCLUSION
Accordingly, it is respectfully recommended that plaintiff’s action should be dismissed
pursuant to Rules 16(f) and 37(b)(2)(A)(v) of the Federal Rules of Civil Procedure. The Clerk of
Court is respectfully directed to mail plaintiff a copy of this Report.
FILING OF OBJECTIONS TO REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure,
the parties shall have fourteen days from service of this Report to file written objections. See also
Fed. R. Civ. P. 6. Such 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 fourteen-day period. Failure to file a
timely objection to this Report generally waives any further judicial review. Marcella v. Capital
Dist. Physicians’ 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/
LOIS BLOOM
United States Magistrate Judge
Dated: April 27, 2020
Brooklyn, New York

Plaintiff has failed to file any objections to Judge Bloom's Report and Recommendation. The Court has reviewed it and
finds ample cause for dismissal. The R&R is therefore adopted as the Order of this Court and the case is dismissed.
SO ORDERED: 5/19/20

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

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