Barrera v. Lynbrook Sheriffs Department et al

Filing 28

ORDER ADOPTING REPORT AND RECOMMENDATIONS : having conducted a reviewof the full record and the applicable law, and having reviewed the R&R de novo, the Court adopts the analysis and recommendation contained in the well-reasoned and thorough R&R in their entirety. The Court dismisses this action with prejudice pursuant to Rule 41 (b) of the Federal Rules of Civil Procedure. The Clerk of the Court shall close this case. 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. Ordered by Judge Joseph F. Bianco on 11/30/16. (Bollbach, Jean) cm by chambers to pro se by fcm on 11/30/16

FILED

IN CLERK'S OFFICE
U.S. OISTRICT COURT e.D.N.Y.

*

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------)(

NOV 30 2016

LONG ISLAND OFFICE

DANNY BARRERA/CC#\5003944,
Plaintiff,

ORDER
15-CV-4652 (JFB)(A YS)

-against-

*

LYNBROOK'S SHERIFF'S DEPARTMENT,
SHERIFF MURPHY, SHERIFF HART, and
SHERIFF FALSITA,
Defendants.

---------------------------------------------------------------)(
JOSEPH F. BIANCO, District Judge:
Before the Court is a Report and Recommendation dated November 4, 2016 ("R&R," ECF
No. 26) from Magistrate Judge Shields recommending that the Court dismiss this action for failure
to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 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
at 6-7.) Defendants served the R&R on plaintiff on November 4, 2016. (ECF No. 27.) The
date for filing any objections has since 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 dismisses plaintiff's complaint with prejudice.
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 findings."); see also Mario v. P &
C Food Mkls., 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 of justice."' (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. 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)): see Lucas v. Miles, 84 F.3d
532, 535 (2d Cir. 1996) ("[D]ismissa\ [pursuant to Rule 4l(b)] is a harsh remedy and is appropriate
only in extreme situations."); Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir. 2004) ("Rule [4l(b)]
is intended to serve as a rarely employed, but useful, tool of judicial administration available to
district courts in managing their specific cases and general caseload.''). Moreover, it is wellsettled that a district court "may act sua Jponte to dismiss a suit for failure to prosecute."
Chambers v. NASCO. Inc., 501 U.S. 32,44 (1991) (citing Link. 370 U.S. at 630); see also LeSane
v. Hal/"s Sec. Analyst. Inc .• 239 F.3d 206, 209 (2d Cir. 2001) ("Although the text of Fed. R. Civ.

P. 41 (b) expressly addresses only the case in which a defendant moves for dismissal of an action,
it is unquestioned that Rule 41(b) also gives the district court authority to dismiss a plaintiffs case

sua sponte for failure to prosecute.").

Courts have repeatedly found that "[ d]ismissal of an action is warranted when a litigant,
whetherrepresented or instead proceeding prose, fails to comply with legitimate court directives."

Yulle v. Barkley, No. 9:05-CV-0802, 2007 WL 2156644, at '2 (N.D.N.Y. July 25, 2007) (citations
omitted). A district court contemplating dismissal of a plaintiffs claim for failure to prosecute
and/or to comply with a court order pursuant to Rule 41 (b) must consider:

1) the duration of plaintiffs 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 5)
whether the court adequately considered the efficacy of a sanction less draconian
than dismissal.

Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 63 (2d Cir. 2000). In deciding
whether dismissal is appropriate, "[g]enerally, no one factor is dispositive." Nita v. Conn. Dep 't

ofEnv. Prot., I6 F.3d 482,485 (2d Cir. !994); see Peart v. CityofNew York, 992 F.2d 458, 461(2d
Cir. 1993) ('" [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 I 7I, I 73-74 (2d Cir. I 981)). Further, "[w]hen
a party changes addresses, it is his or her obligation to notify the Court of the new address."

Garcia v. Hynes, No. 08 Civ. 2I55, 2009 WL 890640, at 'I (E.D.N.Y. Mar. 31, 2009) (citing
Concepcion v. Ross, No. 92 Civ. 770, 1997 WL 777943, at 'I (E.D.N.Y. Oct. 28, 1997)) (citing
Local Civil Rule 1.3(d) and holding "[t]he responsibility for keeping the court infOrmed of changes
of address rests with the petitioner.").
Here, plaintiff has failed to appear or communicate with the court since December 7, 2015,
when plaintiff filed consent for electronic notification with the Clerk of the Court.1

(ECF No.

21.) Plaintiff has failed to comply with multiple orders commanding plaintiff to appear for an
initial conference. (R&R at 1.) Plaintiff was warned that failure to respond to the Court may

1 Notwithstanding plaintiff's consent to electronic notification, Magistrate Judge Shields required defendants to
serve plaintiff via mail with the orders with which he has failed to comply. (See Electronic Orders dated July 29,
2016 and August 22, 2016.)

•

result in dismissal for failure to prosecute. (ld.) Moreover. plaintiWs failure to comply with
multiple orders is prejudicial to defendants, who bear the costs and burdens of having this open
civil litigation, and also contributes to calendar congestion. In short, having conducted a review
of the full record and the applicable law, and having reviewed the R&R de novo, the Court adopts

the analysis and recommendation contained in the· well-reasoned and thorough R&R in their
entirety.
The Court dismisses this action with prejudice pursuant to Rule 41 (b) of the Federal Rules

of Civil Procedure. The Clerk of the Court shall close this case. 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).

S<1\:JRDERF.R.

~~'v\ ~<>«--<:>
f'}ephFfBianco
(/nited States District Judge
Dated:

November 30,2016
Central Islip, New York