Whyte v. Officer Cunningham et al
ORDER: SO ORDERED that the Court adopts the findings and recommendations contained in the well-reasoned R&R in their entirety. Accordingly, IT IS HEREBY ORDERED that this action is dismissed with prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 4l(b). The Clerk of the Court shall enter judgment accordingly and 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 11/28/2017. (cm to pro se plaintiff by chambers) (Florio, Lisa)
IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOV 28 2017
LONG ISLAND OFFICE
16-CV-4042 (JFB) (ARL)
-againstOFFICER CUNNINGHAM, #3079 and OFFICER
JOSEPH F. BIANCO, District Judge:
Before the Court is a Report and Recommendation dated November 2, 2017 ("R&R," Dkt.
No. 21) from Magistrate Judge Arlene Lindsay 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 be submitted within fourteen days of the Order. (R&R at 3.) The date for
filing any objections has since expired, and prose plaintiff Uriel Whyte ("plaintiff') has not filed
any objection to the R&R. For the reasons set forth below, the Court adopts the 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 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)).
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 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 [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 well-settled that a district court "may actsua 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 630-31); 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 proceedingpro se, fails to comply with legitimate court directives."
Yu/le v. Barkley, No. 9:05-CV-0802 (LEK) (DEP), 2007 WL 2156644, at *2 (N.D.N.Y. July 25,
2007) (citations 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 4l(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 5)
whether the court adequately considered the efficacy of a sanction less draconian
Baffa v. Donaldson, Lujldn & 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
ofE.nv. 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."')(quotingMerkerv. Rice,649F.2d 171, 173-74(2dCir.1981)). Further, "[w]hen
a party changes addresses, it is his or her obligation to notify the Court of the new address."
Garciav. Hynes, No. 08 Civ. 2155 (RJD) (LB), 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)).
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 wellreasoned R&R in their entirety.
Accordingly, IT IS HEREBY ORDERED that this action is dismissed with prejudice for
failure to prosecute pursuant to Federal Rule of Civil Procedure 4l(b). The Clerk of the Court
shall enter judgment accordingly and 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).
U\}lted States District Judge
Central Islip, New York
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