Miller et al v. County of Nassau et al

Filing 146

ORDER ADOPTING REPORT AND RECOMMENDATIONS : For the foregoing reasons, Judge Shields R&R (Docket Entry 121) is ADOPTED in its entirety. The Armor Defendants motion to dismiss (Docket Entry 114) is GRANTED and Smiths claimsare DISMISSED with prejudic e. The Clerk of the Court is directed to TERMINATE Smith as a plaintiff in this matter. The Armor Defendants are directed to serve a copy of this Order by overnight mail and first-class mail to Plaintiffs attheir last-known addresses and to file proo f of service on ECF no later than two (2) days after the date of this Order. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is DENIED for the purposeof any appeal.. Ordered by Judge Joanna Seybert on 2/14/2018. (Bollbach, Jean)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
RANDY COLON and HUGH SMITH,
Plaintiffs,
-againstCOUNTY OF NASSAU; MICHAEL SPOSATO,
Sheriff of Nassau County; ARMOR
CORRECTIONAL HEALTH, INC.; DR. KAY,
M.D.; DR. OMANU, M.D.; DR. VINCENT
MANETTI, M.D.; NURSING ADMINISTRATOR
HAILEY; and DR. SANTARELLI, D.D.S.,

MEMORANDUM & ORDER
12-CV-4466(JS)(AYS)

Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Randy Colon
Randy Colon, pro se
15-A-1535
Great Meadow Correctional Facility
PO Box 51
Comstock, NY 12821-0051
Hugh Smith

For Defendants:
County of Nassau

Michael Sposato,
Armor Correctional
Health, Inc, Dr. Kay,
Dr. Manetti, Nursing
Administrator Hailey
and Dr. Santarelli

Hugh Smith, pro se
104-06 217 Lane, 2nd Floor
Queens Village, NY 11429
Pablo A. Fernandez, Esq.
Samantha Goetz, Esq.
Nassau County Attorney's Office
One West Street
Mineola, NY 11501

John J. Doody, Esq.
Dale N. McLaren, Esq.
Suzanne E. Aribakan, Esq.
Lewis Brisbois Bisgaard & Smith, LLP
77 Water Street, Suite 2100
New York, NY 10005

SEYBERT, District Judge:
Pending

before

the

Court

are:

(1)

Defendants

Armor

Correctional Health, Inc., Dr. Kay, Dr. Vincent Manetti, and Dr.
Santarelli’s (collectively, the “Armor Defendants”) March 21, 2017
letter motion to dismiss for failure to prosecute pursuant to Rule
41(b) of the Federal Rules of Civil Procedure (Defs.’ Mot., Docket
Entry 114) and (2) Magistrate Judge Anne Y. Shields’ Report and
Recommendation (“R&R”) recommending that the Court grant the Armor
Defendants’ motion to dismiss.

(R&R, Docket Entry 121.)

For the

following reasons, the Court ADOPTS Judge Shields’ R&R in its
entirety.
BACKGROUND
On September 6, 2012, pro se Plaintiff Daniel Miller1
commenced this action with five other pro se plaintiffs, including
Hugh

Smith

(“Smith”)

pursuant

to

42 U.S.C. § 1983,

alleging

various violations of his constitutional rights by Defendants
County of Nassau, Sheriff of Nassau County Michael Sposato, and
the Armor Defendants.

(See generally Compl., Docket Entry 1.)

Smith and Randy Colon (“Colon”) are the only remaining plaintiffs
in this action.

(R&R at 1-2.)

Plaintiffs Daniel Miller, Edward Vaiana, Elvi Rodriguez, and
Tyron Maynor have been terminated from this action. (See Nov.
20, 2012 Order, Docket Entry 24; Oct. 6, 2016 Mem. & Order,
Docket Entry 98.)
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2

On March 21, 2017, the Armor Defendants addressed to
Judge Shields a motion to dismiss Smith’s claims for failure to
prosecute based on his non-compliance with court orders.

(Defs.’

Mot.) On May 5, 2017, Judge Shields issued her R&R. (See generally
R&R.)
THE R&R
In her R&R, Judge Shields recommended that this Court
grant the Armor Defendants’ motion to dismiss, with prejudice.
(R&R at 7-8.)

Judge Shields found that Smith “has repeatedly

failed to comply with the Court’s orders” and “failed to make any
appearance on this docket since December 6, 2016.”

(R&R at 6.)

Moreover, Smith has failed to comply with five of Judge Shields’
orders since that time.

(R&R at 6.)

Judge Shields found that

Smith’s “failure to follow Court directives and his lack of
prosecution has an adverse impact not only on the Court’s calendar,
but also on Defendants, who already bear the costs and burdens
incidental to defending civil litigation.”

(R&R at 6.)

In light

of the prejudice resulting from Smith’s unreasonable delay and the
fact that lesser sanctions would not be effective, Judge Shields
recommended

that

the

undersigned

grant

the

Armor

motion and dismiss Smith’s claims with prejudice.

Defendants’

(R&R at 7.)

DISCUSSION
In reviewing an R&R, a district court “may accept,
reject,

or

modify,

in

whole

or
3

in

part,

the

findings

and

recommendations

made

by

the

magistrate

judge.”

28

U.S.C.

§ 636(b)(1)(C). If no timely objections have been made, the “court
need only satisfy itself that there is no clear error on the face
of the record.”

Urena v. New York, 160 F. Supp. 2d 606, 609-10

(S.D.N.Y. 2001) (internal quotation marks and citation omitted).
Objections were due within fourteen (14) days of service
of the R&R.

The time for filing objections has expired, and no

party has objected.

Accordingly, all objections are hereby deemed

to have been waived.
Upon careful review and consideration, the Court finds
Judge Shields’ R&R to be comprehensive, well-reasoned, and free of
clear error, and it ADOPTS the R&R in its entirety.
CONCLUSION
For the foregoing reasons, Judge Shields’ R&R (Docket
Entry 121) is ADOPTED in its entirety.

The Armor Defendants’

motion to dismiss (Docket Entry 114) is GRANTED and Smith’s claims
are DISMISSED with prejudice.

The Clerk of the Court is directed

to TERMINATE Smith as a plaintiff in this matter.
The Armor Defendants are directed to serve a copy of
this Order by overnight mail and first-class mail to Plaintiffs at
their last-known addresses and to file proof of service on ECF no
later than two (2) days after the date of this Order.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
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and therefore in forma pauperis status is DENIED for the purpose
of any appeal.

See Coppedge v. United States, 369 U.S. 438, 444-

45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).

SO ORDERED.

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

February
14 , 2018
Central Islip, New York

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