Jefferson v. Webber et al

Filing 43

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; For the foregoing reasons, Plaintiff's Objections(Docket Entry 40) are OVERRULED and Judge Lindsay's R&R (Docket Entry 37) is ADOPTED in its entirety. Defendants' motions to dism iss for lack of prosecution (Docket Entries 34 and 35) are GRANTED. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the pro se Plaintiff and mark this case CLOSED. 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 purpose of any appeal. So Ordered by Judge Joanna Seybert on 2/24/2017. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------X
KEVIN L. JEFFERSON,
Plaintiff,

MEMORANDUM & ORDER
13-CV-5648(JS)(ARL)

-againstEDWARD WEBBER, Commissioner, SERGEANT
RENE GARCIA, POLICE OFFICER CHRISTOPHER
VERWYS, POLICE OFFICER MIGUEL VIAS,
POLICE OFFICER GLEN DALEO, POLICE
OFFICER JESSICA VITALE, and
COUNTY OF SUFFOLK,

Defendants.
-----------------------------------------X
APPEARANCES
For Plaintiff:
Kevin L. Jefferson, pro se
8 Candlewood Road
N. Bay Shore, NY 11706
For Defendants:

Brian C. Mitchell, Esq.
Suffolk County Dep’t of Law
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, NY 11788

SEYBERT, District Judge:
Currently pending before the Court is Magistrate Judge
Arlene R. Lindsay’s Report and Recommendation dated August 10,
2016

(the

“R&R”),

with

respect

to

defendants

Edward

Webber,

Sergeant Rene Garcia, Police Officer Christopher Verwys, Police
Officer Miguel Vias, Police Officer Glen Daleo, Police Officer
Jessica

Vitale,

and

the

County

of

Suffolk’s

(collectively,

“Defendants”) motions to dismiss for lack of prosecution, (Docket
Entry 34 and 35).

Judge Lindsay recommends that Defendants’

motions be granted. (R&R, Docket Entry 37, at 1.) Plaintiff Kevin
L.

Jefferson

(“Plaintiff”)

presently before the Court.

has

filed

objections,

which

are

(Pl.’s Obj., Docket Entry 40.)

For

the reasons set forth below, Plaintiff’s objections are OVERRULED
and Judge Lindsay’s R&R is ADOPTED in its entirety.
BACKGROUND
On October 8, 2013, Plaintiff commenced this action
asserting claims pursuant to 42 U.S.C. Section 1983 in connection
with his June 2013 arrest.

(See generally Compl.)

On May 6,

2015, Judge Lindsay scheduled a final pre-trial conference for
January 26, 2016.

(May 2015 Order, Docket Entry 16.)

Judge

Lindsay directed the parties to file a joint pretrial order prior
to the conference.

(May 2015 Order.)

Plaintiff failed to appear at the January 26, 2016
pretrial conference.

(Jan. Minute Entry, Docket Entry 18.)

Judge

Lindsay rescheduled the pretrial conference for February 18, 2016,
and directed Plaintiff to file a submission by February 11, 2016,
explaining why this action should not be dismissed.
Entry).

(Jan. Minute

On February 11, 2016, Plaintiff filed a letter stating

that he failed to appear at the January pretrial conference because
he wrote the date in the “schedules” application on his cell phone
and lost his cell phone in late December 2015.
Docket Entry 11, at 1.)

(Pl.’s Feb. Ltr.,

Plaintiff indicated that he planned to

2

appear at the pretrial conference scheduled for February 18, 2016.
(Pl.’s Feb. Ltr. at 2.)
On February 18, 2016, Plaintiff appeared at the final
pretrial conference.

(Feb. Minute Entry, Docket Entry 22.)1

Judge Lindsay deemed all discovery to be complete, extended the
deadline to take the first step in the dispositive motion process
to March 21, 2016, and directed the parties to submit their
proposed joint pretrial order on or before April 22, 2016.
Minute Entry.)

(Feb.

On March 28, 2016, Defendants served Plaintiff

with their Local Rule 56.1 Statement.

(Docket Entry 23.)

On April 22, 2016, Defendants filed a letter indicating
that they failed to receive “any information from the plaintiff
regarding what, if anything, he wishes to be included in the
proposed [pretrial] order.”

(Defs.’ Apr. Ltr., Docket Entry 24.)

Defendants requested that Judge Lindsay recommend to this Court
that this action be dismissed, or that Plaintiff be precluded from
introducing evidence or witnesses at trial.

(Defs.’ Apr. Ltr.)

On April 27, 2016, Judge Lindsay issued an Electronic Order
providing

Plaintiff

with

“one

final

opportunity

to

serve

defendants with his portion of the joint pretrial order by May 13,

On February 12, 2016, Defendants filed a letter motion to
dismiss this action for failure to prosecute. (Defs.’ Feb.
Mot., Docket Entry 20.) Defendants’ motion was terminated on
February 18, 2016, in connection with Judge Lindsay’s final
pretrial conference.
1

3

2016.”

Judge

participate

Lindsay

in

recommendation
prosecute.

the
that

indicated
pretrial

this

that

Plaintiff’s

process

case

be

would

dismissed

failure

result
for

in

failure

to
a
to

On April 27, 2016, Defendants served Plaintiff by mail

with a copy of Judge Lindsay’s April 27, 2016 Electronic Order.
(Docket Entry 25.)
On May 13, 2016, Defendants filed a letter motion to
dismiss

this

action

for

failure

to

prosecute,

alleging

that

Plaintiff failed to provide any information regarding the pretrial
order.
County

(Defs.’ May 2016 Mot., Docket Entry 26.)
Attorney

handling

this

matter,

Brian

The Assistant

Mitchell,

Esq.,

indicated that he had had no contact with Plaintiff, and Plaintiff
failed to timely provide his Local Rule 56.1 Counterstatement by
April 29, 2016.

(Defs.’ May 2016 Mot.)

That same day, Plaintiff

filed a letter requesting: (1) an extension of time to file his
portion

of

the

joint

pretrial

order

and

to

“respond

to

the

defendants’ motion for summary judgment,” and (2) that discovery
be reopened.

(Pl.’s May 2016 Ltr., Docket Entry 28.)

However,

Plaintiff’s letter was not docketed until May 17, 2016.
On May 24, 2016, Judge Lindsay denied Defendants’ motion
to dismiss for failure to prosecute but directed Plaintiff to
reimburse Defendants for their reasonable expenses incurred in
filing their motion.

(May 2016 Order, Docket Entry 29.)

Judge

Lindsay provided Plaintiff with a final opportunity to provide his
4

portion of the pretrial order to Defendants by June 3, 2016, and
noted that “[a]s is his pattern, [Plaintiff] waited until the
defendants filed the instant motion to seek an extension of time
to submit his portion of the pretrial order and his Rule 56.1
Counterstatement.”
to

grant

(May 2016 Order at 3.)

additional

extensions

and

Judge Lindsay declined

indicated

that

she

would

recommend that this action be dismissed if Plaintiff failed to
comply or failed to reimburse Defendants for their costs.

(May

2016 Order at 3.)
On

June

3,

2016,

Defendants

filed

a

letter

motion

requesting: (1) attorneys’ fees totaling $300 in connection with
Judge Lindsay’s May 23, 2016, Order, and (2) that this action be
dismissed based on Plaintiff’s failure to provide information
regarding the pretrial order. (Defs.’ Jun. 2016 Ltr., Docket Entry
30.)

That

indicating

same
that

day,

Defendants

Plaintiff

called

filed
Mr.

an

additional

Mitchell’s

letter

office

at

approximately 3:15 p.m. and advised his secretary that he would be
filing the pretrial order that day and mailing Defendants a copy
the following day.

(Defs.’ Sec. Jun. 2016 Ltr., Docket Entry 31.)

Defendants renewed their request for dismissal of this action based
on

Plaintiff’s

directives.

repeated

failure

to

comply

(Defs.’ Sec. Jun. 2016 Ltr.)

with

judicial

Plaintiff filed his

portion of the joint pretrial order on June 3, 2016. (Docket Entry

5

32.)

To date, Plaintiff has not filed proof of service of the

joint pretrial order.
On June 7, 2016, Judge Lindsay denied Defendants’ letter
motion to dismiss for failure to prosecute with leave to renew if
they failed to receive Plaintiff’s portion of the joint pretrial
order by June 10, 2016.

(Jun. 2016 Order, Docket Entry 33, at 2.)

Judge Lindsay also found Defendants’ requested fee award to be
reasonable and directed Plaintiff to remit $300 to Defendants on
or before July 1, 2016.

(Jun. 2016 Order.)

Judge Lindsay further

stated that “[P]laintiff is warned that his failure to [remit $300
to Defendants] may result in a recommendation that the case be
dismissed for failure to prosecute.”

(Jun. 2016 Order.)

On June 18, 2016, Defendants renewed their request for
dismissal, alleging that Plaintiff failed to serve his portion of
the pretrial order.
34.)

(Defs.’ Third Jun. 2016 Ltr., Docket Entry

On July 17, 2016, Defendants filed an additional motion to

dismiss,

contending

that

Plaintiff

failed

to

remit

the

$300

sanctions and still had not served his portion of the pretrial
order. (Defs.’ Fourth Jun. 2016 Ltr., Docket Entry 35.) Plaintiff
failed to respond to either of Defendants’ motions to dismiss.
A.

The R&R
On

recommending
granted.

August
that

10,

2016,

Defendants’

Judge
pending

Lindsay
motions

issued
to

her

dismiss

R&R
be

Judge Lindsay stated that “[d]espite being repeatedly
6

advised by both the court and counsel for the defendants that he
had an obligation to prepare his portion of the pretrial order and
pay the $300 sanction, the plaintiff failed to take any further
action on the case.”

(R&R at 5.)

Judge Lindsay also determined

that a lesser sanction than dismissal will not “alleviate the
prejudice to defendants in keeping the case open to say nothing of
the need to alleviate court congestion where plaintiff has ignored
every order issued by this Court.”

(R&R at 5.)

On August 31, 2016, Plaintiff filed his Objections to
the R&R, essentially arguing that Judge Lindsay’s recitation of
the

procedural

history

generally Pl.’s Obj.)

in

this

matter

is

inaccurate.

(See

Specifically, Plaintiff alleges that he was

not warned at the February 18, 2016, conference that his failure
to

file

his

portion

of

the

pretrial

order

could

result

in

dismissal. (Pl.’s Obj. at 4-5.) Plaintiff also alleges that while
Judge Lindsay stated that he waited until Defendants filed their
motion to dismiss to seek an extension of time to file his portion
of the pretrial order and Rule 56.1 Counterstatement, (R&R at 3),
in actuality, he filed his extension request on the date that his
submission was due, (Pl.’s Obj. at 6).

Additionally, Plaintiff

avers that while Judge Lindsay stated that his request for an
extension failed to provide an explanation for his non-compliance,
(R&R at 3), Plaintiff indicated that he needed additional time in

7

order to address Defendants’ Rule 56.1 Statement2 and move to
reopen discovery, (Pl.’s Obj. at 7-8). Finally, Plaintiff attempts
to move for an order vacating Judge Lindsay’s award of sanctions,
noting that he is indigent and proceeding in this matter in forma
pauperis.

(Pl.’s Obj. at 11-12.)
Defendants oppose Plaintiff’s Objections and principally

argue that Plaintiff “misstates the chronological progression of
the Magistrate[’]s Orders and his repeated failures,” noting that
they have not received the allegedly mailed copy of Plaintiff’s
portion of the pretrial order or the $300 sanction imposed by Judge
Lindsay.3

(Defs.’ Resp., Docket Entry 41, at 2-3.)
DISCUSSION
“When evaluating the report and recommendation of a

magistrate judge, the district court may adopt those portions of
the report to which no objections have been made and which are not
facially erroneous.”

Walker v. Vaughan, 216 F. Supp. 2d 290, 291

Plaintiff alleges that he needed additional time “because
Defense Counsel, in his endeavor towards moving for summary
judgment had knowingly filed perjurious [sic] affidavits, taking
the lesser of two evils to knowingly advance a fraudulent
defense.” (Pl.’s Obj. at 8 (internal quotation marks and
citation omitted).) The Court assumes Plaintiff is referring to
Defendants’ Local Rule 56.1 Statement, which was served on
March 28, 2016. (See Docket Entry 23.)
2

Defendants also argue that Plaintiff’s Objections should be
denied as untimely. (Defs.’ Resp. at 1.) However, in an
Electronic Order dated October 7, 2016, this Court granted
Plaintiff’s August 26, 2016, motion for an extension of time to
file objections to the R&R nunc pro tunc.
3

8

(S.D.N.Y. 2002) (citation omitted).

A party may serve and file

specific, written objections to a magistrate judge’s report and
recommendation within fourteen days of being served with the
recommended disposition.
receiving

any

timely

See FED. R. CIV. P. 72(b)(2).

objections

to

the

magistrate

Upon
judge’s

recommendation, the district court “may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the
magistrate judge.”
P. 72(b)(3).

28 U.S.C. § 636(b)(1)(C); see also FED. R. CIV.

The Court conducts a de novo review of any portion

of the report and recommendation that a party objects to.

Walker,

216 F. Supp. 2d at 292.
Federal Rule of Civil Procedure 41(b) provides that
“[i]f the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the action
or any claim against it.” FED. R. CIV. P. 41(b). Dismissal pursuant
to Rule 41(b) is a “harsh remedy” reserved for “extreme cases” and
courts are particularly reluctant to dismiss pro se claims on this
basis.

Melendez v. City of N.Y., No. 12-CV-9241, 2014 WL 6865697,

at *2 (S.D.N.Y. Dec. 4, 2014).

“Nevertheless, in appropriate

circumstances, courts have dismissed such claims for failure to
prosecute.”
In

Id. (collecting cases).
determining

motions

to

dismiss

for

prosecution, the Court weighs the following factors:

9

lack

of

“(1) the duration of the plaintiff’s failure
to comply with the court order, (2) whether
plaintiff was on notice that failure to comply
would result in dismissal, (3) whether the
defendants are likely to be prejudiced by
further delay in the proceedings, (4) a
balancing of the court’s interest in managing
its docket with the plaintiff’s interest in
receiving a fair chance to be heard, and (5)
whether the judge has adequately considered a
sanction less drastic than dismissal.”
Watkins v. Matarazzo, No. 13-CV-2477, 2016 WL 3351079, at *2
(S.D.N.Y. Jun. 14, 2016) (quoting Baptiste v. Sommers, 768 F.3d
212,

216

(2d

dispositive.”

Cir.

2014)).

“No

single

factor

is

generally

Baptiste, 768 F.3d at 216.

The Court has reviewed the R&R and finds no error in
Judge Lindsay’s recommendation that this action be dismissed for
failure to prosecute.

Plaintiff’s failure to comply with Court

Orders dates back to January 2016, when he failed to appear at the
final pretrial conference.

(Jan. Minute Entry.)

As set forth in

great detail above, Plaintiff undisputedly failed to submit his
portion of the pretrial order by April 22, 2016, in accordance
with Judge Lindsay’s Order.

(Feb. Minute Entry; Defs.’ Apr. Ltr.)

While Plaintiff eventually filed his portion of the pretrial order
on June 3, 2016, Defendants allege that they have yet to receive
a copy by mail notwithstanding Plaintiff’s representation that he
mailed the pretrial order on June 4, 2016.
Pl.’s Obj. at 13.)

(Defs.’ Resp. at 2;

Moreover, Plaintiff has undisputedly failed to

10

pay the $300 sanction imposed pursuant to Judge Lindsay’s Orders.
(See May 2016 Order; Jun. 2016 Order.)
Additionally, while Plaintiff alleges that he was not
warned at the February 18, 2016, pretrial conference that his
failure to file his portion of the pretrial order could result in
dismissal, (Pl.’s Obj. at 4-5), the docket indicates that Judge
Lindsay repeatedly cautioned Plaintiff that his failure to comply
with Court Orders might result in such a recommendation.

(See

Jan. Minute Entry; Apr. 27, 2016 Elec. Order (“[f]ailure to [serve
defendants with Plaintiff’s portion of the joint pretrial order]
will result in a recommendation that the case be dismissed for
failure to prosecute.

The plaintiff has been repeatedly warned

that dismissal for failure to prosecute will be a dismissal with
prejudice”); May 2016 Order at 3 (“[t]he undersigned . . . will
recommend dismissal if [Plaintiff] fails to comply with this order
or to reimburse the defendants the cost of the application”); Jun.
2016 Order (holding that plaintiff’s failure to remit the $300
sanction to Defendants “may result in a recommendation that the
case be dismissed for failure to prosecute”).)

Cf. Melendez, 2014

WL 6865697, at *2 (“[t]he Second Circuit has recently counseled
that, in light of the harsh nature of this remedy, District Courts
must be sure to ‘disclose [the] deliberative path’ taken in
concluding that dismissal is warranted under Rule 41(b)”) (quoting
Baptiste, 768 F.3d at 217; alteration in original).
11

In

terms

[Defendants],

of

the

the

third

remaining
factor,

factors,

may

be

“[p]rejudice

presumed

to

because

[Plaintiff] has unreasonably delayed the progress of this case.”
Stanley v. Ercole, No. 09-CV-4646, 2015 WL 3883584, at *5 (E.D.N.Y.
Jun. 23, 2015).

But see Baptiste, 768 F.3d at 218 (“defendants

have not pointed to any concrete way that they have suffered or
will suffer prejudice due to [the plaintiff’s] delay”). The fourth
factor “points slightly in favor of dismissal or is neutral” since
“the burdens imposed by Plaintiff’s failure to participate have
not

been

onerous.”

Melendez,

2014

WL

6865697,

at

*3.

Nevertheless, the Court notes that Plaintiff’s failure to timely
participate
Lindsay

in

the

reschedule

pretrial
the

process

pretrial

necessitated

conference

and

that

issue

Judge
Orders

regarding Plaintiff’s non-compliance and/or request for extension
in April, May, and June 2016.

Finally, as Plaintiff has failed to

remit the $300 sanction imposed by Judge Lindsay, it is clear that
a sanction less drastic than dismissal will not be effective.
The Court is not persuaded by Plaintiff’s attempt to
dissect the R&R’s recitation of the procedural history of this
matter.

Plaintiff argues that Judge Lindsay erred in stating that

his “pattern” was to wait until Defendants moved to dismiss and
then file a request for an extension of time.
Particularly,

Plaintiff

alleges

that

he

(Pl.’s Obj. at 9.)
was

informed

about

Defendants’ May 2016 motion to dismiss when he filed his request
12

for an extension of time on May 13, 2016, and he avers that
Defendants’

motion

was

premature

since

it

was

filed

before

Plaintiff’s time to file his submission or request an extension
expired.

(Pl.’s Obj. at 9.)

However, the question of whether

Plaintiff waited until Defendants filed their motion to dismiss to
request an extension is irrelevant, as is the alleged prematurity
of Defendants’ motion. It is undisputed that rather than complying
with Judge Lindsay’s Order and filing his portion of the final
pretrial order by May 13, 2016, Plaintiff waited until the day his
submission was due to request an extension and further delayed the
pretrial process.
Moreover, it is not lost on the Court that the May 13,
2016, deadline was effectively Plaintiff’s third deadline to file
his portion of the pretrial order.

The parties were initially

required to submit their pretrial order in advance of the January
26, 2016, pretrial conference that Plaintiff failed to attend.
Judge Lindsay then directed the parties to submit their pretrial
order by April 22, 2016.

(See Feb. 2016 Minute Entry.)

When

Plaintiff failed to submit his portion of the pretrial order by
April 22nd, he was provided another opportunity to do so by May
13th.

(See Apr. 27, 2016 Elec. Order.)
Similarly,

while

Plaintiff

takes

issue

with

Judge

Lindsay’s statement that his May 13, 2016, request for an extension
failed to provide an explanation for his failure to comply, (Pl.’s
13

Obj. at 7-8), the Court concurs with Judge Lindsay. In his request
for an extension, Plaintiff alleged that he required additional
time to address Defendants’ Rule 56.1 Statement and move to reopen
discovery due to Defendants’ alleged misstatements; however, he
failed to elucidate why he was unable to submit his portion of his
pretrial order by May 13, 2016.

(Pl.’s May 2016 Ltr.)

Finally, to the extent Plaintiff requests that the Court
“vacat[e]”

Judge

Lindsay’s

Order

imposing

sanctions

of

$300,

(Pl.’s Obj. at 11), Plaintiff failed to object to Judge Lindsay’s
Orders awarding attorneys’ fees and costs to Defendants for the
preparation of their May 2016 motion to dismiss, and the time to
do so had expired at the time he filed his Objections on August
31, 2016.

See FED. R. CIV. P. 72(a).

(See also May 2016 Order;

Jun. 2016 Order.)
CONCLUSION
For

the

foregoing

reasons,

Plaintiff’s

Objections

(Docket Entry 40) are OVERRULED and Judge Lindsay’s R&R (Docket
Entry 37) is ADOPTED in its entirety.

Defendants’ motions to

dismiss for lack of prosecution (Docket Entries 34 and 35) are
GRANTED.

The Clerk of the Court is directed to mail a copy of

this Memorandum and Order to the pro se Plaintiff and mark this
case

CLOSED.

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
14

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
24 , 2017
Central Islip, New York

15