Benloss v. Sealey et al

Filing 33

ORDER ADOPTING REPORT AND RECOMMENDATIONS: SO ORDERED that 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 4l(b) of th e Federal Rules of Civil Procedure. The Clerk of the Court shall close this case. The Court certifies pursuant to 28 U.S.C. § l 915(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 6/15/2017. (cm to pro se plaintiff by chambers) (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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KEVIN L. BENLOSS,

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JUN 15 2017

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LONG ISLAND OFF/Ce
Plaintiff,

ORDER
16-CV-3671 (JFB) (ARL)

-againstSHARON SEALEY, ET AL.,
Defendants.

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JOSEPH F. BIANCO, District Judge:
Before the Court is a Report and Recommendation dated May 25, 2017 ("R&R," ECF
No. 32) from Magistrate Judge Lindsay recommending that the Court dismiss this action for
failure to prosecute pursuant to Federal Rule of Civil Procedure 4l(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 3.) A copy of the R&R was sent to plaintiff on the same day it was issued. (See ECF
No. 32.) 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 wellreasoned R&R in its entirety and dismisses plaintiffs 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 Mias., 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
ope'rates 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 Linkv. Wabash R.R. Co., 370 U.S. 626, 633 (1962)); see Lucas v. Miles,
84 F.3d 532, 535 (2d Cir. 1996) ("[D]ismissal [pursuant to Rule 41(b)] is a harsh remedy and is
appropriate only in extreme situations."); Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir. 2004)
("Rule [41 (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 well-settled that a district court "may act sua sponte 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 Le Sane v. Hall'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,
whether represented or instead proceeding pro se, fails to comply with legitimate court

directives." Yu/le 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. Prof., 16 F.3d 482, 485 (2d Cir. 1994); see Peart v. City ofNew 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 171, 173-74 (2d Cir. 1981)). 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. 2155, 2009 WL 890640, at *1 (E.D.N.Y. Mar. 31, 2009)
(citing Concepcion v. Ross, No. 92 Civ. 770, 1997 WL 777943, at *1 (E.D.N.Y. Oct. 28, 1997))
(citing Local Civil Rule l.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 comply with multiple orders directing plaintiff to file an
opposition to defendants' motions to dismiss, including the Order issued by Magistrate Judge
Lindsay on May 8, 2017 (ECF No. 31 ), which gave plaintiff a final opportunity to prosecute the
case and directed him "to serve and file opposition papers on or before May 24, 201 7." (See
R&R at 1-2.) Plaintiff was warned that failure to respond to that Order would result in a
recommendation to this Court that the case be dismissed for failure to prosecute. (Id) Despite

that warning, plaintiff failed to file such papers. Moreover, plaintiffs 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 nova, 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 4l(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. § l 915(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).

p . Bianco
ted States District Judge
Dated: June 15, 2016
Central Islip, New York