Cortez v. Suffolk County Correctional Facility
ORDER ADOPTING REPORT AND RECOMMENDATIONS : it is hereby ordered that plaintiff's complaint is dismissed for failure to prosecute pursuant to Rule 41 (b) of the Federal Rules of Civil Procedure. The Court certifies pursuant to 28 U.S.C. §1915(a)(3) that any appeal from this Order would not be taken in goodfaith, and therefore in forma pauperis status is denied for the purpose of any appeal. Ordered by Judge Joseph F. Bianco on 10/25/2016. (Bollbach, Jean)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ocr 25 201o
-againstSUFFOLK COUNTY CORRECTIONAL
JOSEPH F, BIANCO, District Judge:
Before the Court is a Report and Recommendation ("R&R", ECF No, 17) from Magistrate
Judge Tomlinson recommending that the Court dismiss prose plaintiff Thomas Cortez's complaint
for failure to prosecute. The R&R instructed that any objections to the R&R be submitted within
fourteen (14) days of service of the R&R See R&R, dated October 5, 2016, at 4, Defendant
filed a certificate of service stating that it effected service on October 5, 2016. (ECF No. 18.)
Thus, the date for filing any objections has expired, and plaintiff has not filed any objection to the
R&R. For the reasons set forth below, the Court adopts the thorough and well-reasoned R&R in
its entirety, and it dismisses plaintiff's complaint for failure to prosecute pursuant to Rule 41 (b) of
the Federal Rules of Civil Procedure,
Where there are no objections, the Court may adopt the report and recommendation without
de novo review. See Thomas v. Arn, 474 U,S, 140, 150 (1985) ("It does not appear that Congress
intended to require district court review of a magistrate's factual or legal conclusions, under a de
novo or any other standard, when neither party objects to those fmdings."); see also Mario v. P &
C Food Mkts,, Inc,, 313 F.3d 758, 766 (2d Cir, 2002) ("Where parties receive clear notice of the
consequences, failure timely to object to a magistrate's report and recommendation operates as a
waiver of further judicial review of the magistrate's decision."); cf 28 U.S.C. § 636(b)(l)(c) and
Fed. R. Civ. P. 72(b)(3) (requiring de novo review after objections). However, because the failure
to file timely objections is not jurisdictional, a district judge may still excuse the failure to object
in a timely manner and exercise its discretion to decide the case on the merits to, for example,
prevent plain error. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) ("[B]ecause the waiver
rule is non jurisdictional, we 'may excuse the default in the interests ofjustice."' (quoting Thomas,
474 U.S. at 155)).
Although plaintiff has waived any objection to the R&R and thus de novo review is not
required, the Court has conducted a de novo review of the R&R in an abundance of caution.
Having conducted a review of the full record and the applicable law, and having reviewed the
R&R de novo, the Court adopts the findings and recommendations contained in the well-reasoned
and thorough R&R in their entirety.
Rule 41 (b) authorizes a district court to "dismiss a complaint for failure to comply with a
court order, treating the noncompliance as a failure to prosecute." Simmons v. Abruzzo, 49 F.3d
83, 87 (2d Cir. 1995) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962)) (additional
citation omitted); see also Fed. R. Civ. P. 41(b). Courts have repeatedly found that "dismissal of
an action is warranted when a litigant, whether represented or instead proceeding prose, fails to
comply with legitimate court directives." Kuar v. Mawn, No. 08-CV-4401, 2012 WL 3808620,
at *3 (E.D.N.Y Sept. 4, 2012) (internal quotations and alteration omitted).
A district court
contemplating dismissal of a plaintiff's claim for failure to prosecute and/or to comply with a court
order pursuant to Rule 41 (b) must consider:
1) the duration of plaintiff's failures or non-compliance; 2) whether plaintiff had
notice that such conduct would result in dismissal; 3) whether prejudice to the
defendant is likely to result; 4) whether the court balanced its interest in managing
its docket against plaintiffs interest in receiving an opportunity to be heard; and S)
whether the court adequately considered the efficacy of a sanction less draconian
Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 63 (2d Cir. 2000); see, e.g.,
Jackson v. City ofNew York, 22 F.3d 71, 74-76 (2d Cir. 1994); see also Peart v. City ofNew York,
992 F.2d 458,461 (2d Cir. 1993) C"[D]ismissal for want of prosecution is a matter committed to
the discretion of the trial judge [and] the judge's undoubtedly wide latitude is conditioned by
certain minimal requirements."' (quoting Merker v. Rice, 649 F.2d 171, 173-74 (2d Cir. 1981))).
In deciding whether dismissal is appropriate, "[g]enerally, no one factor is dispositive." Nita v.
Conn. Dep't ofEnv. Prot., 16 F.3d 482,485 (2d Cir. 1994).
Here, Magistrate Judge Tomlinson warned plaintiff on multiple occasions that his failure
to attend court-ordered conferences would result in dismissal of his complaint. See R&R at 2-3.
Thus, plaintiff has shown no interest in continuing with this action. Under these circumstances,
no sanction less than dismissal will alleviate the prejudice to defendant of continuing to keep this
action open. Moreover, the Court needs to avoid calendar congestion and ensure an orderly and
expeditious disposition of cases. Therefore, all the above-referenced factors favor dismissal of
the instant case.
Accordingly, it is hereby ordered that plaintiff's complaint is dismissed for failure to
prosecute pursuant to Rule 41 (b) of the Federal Rules of Civil Procedure. 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. See
Coppedge v. United States, 369 U.S. 438,444-45 (1962).
SO ORDERED. '
.._United States District Judge
Dated: October 25, 2016
Central Islip, New York
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