Kalamaras v. Lombardi

Filing 37

MEMORANDUM AND ORDER. Judge Lindsay's R&R is ADOPTED in its entirety and Plaintiff's Complaint is DISMISSED with prejudice for failure to prosecute. The Clerk of the Court is directed to enter judgment in favor of Defendant. Ordered by Judge Joanna Seybert on 12/7/2012. (C/M Plaintiff) (c/ECF Defendant) (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
JAMES KALAMARAS,
Plaintiff,
MEMORANDUM & ORDER
11-CV-1262(JS)(ARL)

-againstDEAN LOMBARDI,

Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
James Kalamaras, pro se
64 Upper Sheep Pasture Road
E. Setauket, NY 11733
For Defendant:

Brian C. Mitchell, Esq.
Susan A. Flynn, Esq.
Suffolk County Attorney’s Office
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, NY 11788

SEYBERT, District Judge:
Pending before the Court is Magistrate Judge Arlene R.
Lindsay’s Report and Recommendation (“R&R”) recommending that
the Court grant Defendant Dean Lombardi’s (“Defendant”) letter
motion to dismiss pursuant to Rule 41(b) of the Federal Rules of
Civil Procedure for failure to prosecute.

For the following

reasons, the Court ADOPTS Judge Lindsay’s R&R in its entirety.
BACKGROUND
The Court will only summarize the facts relevant to
the

pending

commenced

motion.

this

action

Plaintiff
pro

se

James
on

Kalamaras

March

15,

(“Plaintiff”)
2011,

against

Defendant,

a

corrections

officer

in

the

Suffolk

County

Correctional Facility (“Defendant”), asserting violations of his
rights

under

the

Eighth

Amendment.

Since

commencing

this

action, Plaintiff has changed his address with the Court five
times.

(See Docket Entries 5, 11, 14, 16, 22.)

Plaintiff last

updated his address on March 21, 2012 to a location in East
Setauket, New York.

(Docket Entry 22.)

On March 23, 2012, Judge Lindsay issued a proposed
scheduling order.

(Docket Entry 23.)

The order provided that

if the parties could not agree to the proposed schedule, they
were to appear for an initial conference on April 18, 2012.

A

copy of this order was mailed to Plaintiff at his East Setauket
address via certified mail.
The parties never informed Judge Lindsay whether they
consented to her proposed scheduling order, and thus she held
the

initial

appeared.
June

13,

conference

on

April

Plaintiff did not.
2012

at

11:30AM.

18.

Counsel

for

Defendant

The conference was adjourned to
In

the

minute

order

mailed

to

Plaintiff later that day, Judge Lindsay warned him that if he
failed to appear for the June 13 conference, she would recommend
that

his

Complaint

(Docket Entry 26.)

be

dismissed

for

failure

to

prosecute.

A copy of the minute order was sent to

Plaintiff via certified mail.

2

Notwithstanding Judge Lindsay’s warning, on June 13,
Plaintiff again failed to appear.

Plaintiff arrived at 12:30PM

--one hour after the case was called--and failed to provide a
reasonable explanation for untimeliness.

Thus, Judge Lindsay

sanctioned him $350 payable to the Suffolk County Attorney.

She

advised the parties to notify her upon receipt of payment at
which

time

Plaintiff

the

did

case

not

would

appeal

proceed.

Judge

(Docket

Lindsay’s

Entry

sanction

33.)

to

the

undersigned.
On November 8, 2012, Defendant filed a letter motion
to dismiss the Complaint for failure to prosecute stating that
Plaintiff had yet to pay the $350 sanction or communicate with
Defendant

or

the

Court

in

Plaintiff

did

not

submit

any

any

way.

opposition

(Docket
to

the

Entry

35.)

motion.

On

November 14, 2012, Judge Lindsay issued her R&R recommending
that the Court grant Defendant’s motion and dismiss Plaintiff’s
Complaint with prejudice.

To date, Plaintiff has not filed any

objections to the R&R.
DISCUSSION
In reviewing an R&R, a district court “may accept,
reject,

or

modify,

recommendations
§ 636(b)(1)(C).

made

in
by

whole
the

or

in

part,

magistrate

the

judge.”

findings
28

and

U.S.C.

If no timely objections have been made, the

“court need only satisfy itself that there is no clear error on
3

the face of the record.”
606,

609-10

(S.D.N.Y.

Urena v. New York, 160 F. Supp. 2d

2001)

(internal

quotation

marks

and

citation omitted).
Here, no party has objected to Judge Lindsay’s R&R,
and the Court finds it to be correct and free of any clear
error.

Accordingly, the Court ADOPTS it in its entirety.
CONCLUSION
Judge Lindsay’s R&R is ADOPTED in its entirety, and

Plaintiff’s

Complaint

failure to prosecute.
mark

this

matter

is

hereby

DISMISSED

WITH

PREJUDICE

for

The Clerk of the Court is directed to

closed,

to

enter

judgment

in

favor

of

Defendant, and to mail a copy of this Memorandum and Order to
the pro se Plaintiff.
SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

December 7, 2012
Central Islip, NY

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