O'Neal v. Ewald et al

Filing 182

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATIONS granting 179 Motion to Dismiss for Lack of Prosecution; adopting in part Report and Recommendations as to 180 Report and Recommendations - For the reasons set forth above, the case is DISMI SSED. The Clerk of the Cort is directed to enter judgment consistent with this Order and close the case. The Clerk of the court is directed to mail a copy of this Memorandum & Order to the pro se plaintiff. 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 Gary R. Brown on 9/23/2021. (Tirado, Chelsea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BRONTIE O'NEAL,

FILED 
CLERK 

11:43 am, Sep 23, 2021

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

MEMORANDUM &
ORDER
CV 16-4318 (GRB)(ARL)

Plaintiff,
-againstWARDEN CHARLES EWALD, et al.,
Defendants.
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GARY R. BROWN, United States District Judge:

Pro se plaintiff Brontie O’Neal, a frequent litigant in this Court, brings this action against
the warden of the facility in which he is or was housed, along with a doctor and nurse employed
therein, claiming that he was attacked by fellow inmates after guards advised them that he was
convicted of beating an 83-year old woman 1 and were subsequently indifferent to his medical
needs. Presently before the Court is the Report and Recommendation dated August 18, 2021 of
Judge Arlene R. Lindsay, Docket Entry (“DE”) 180, in connection with the renewed motion by
defendants to dismiss under Fed. R. Civ. P. 41 based upon plaintiff’s failure to prosecute this case
diligently and repeated and persistent non-compliance with Court Orders in this matter, DE 179.
The Court has carefully reviewed the thorough report by Magistrate Judge Lindsay, which
recommends a preclusion sanction, as well as the record of the case. While the Court readily
adopts the factual findings by Judge Lindsay as well as the conclusion that a sanction is warranted,

In a remarkable, though irrelevant, turn, an unrepentant O’Neal filed claims against the 83-year old victim whom
he admitted assaulting under oath. See O'Neal v. E. Hampton Town, No. 16-0570 (JFB)(GRB), 2017 WL 4174788,
at *7 (E.D.N.Y. 2017), adopted sub nom. O'Neal v. Spota, 2017 WL 4162307 (E.D.N.Y. 2017), aff'd, 744 F. App'x
35 (2d Cir. 2018).

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the Court differs as to the appropriate sanction to be employed. As such, the Report and
Recommendation is adopted in part, and the case is dismissed for failure to prosecute and willful
noncompliance with Court orders.
Standard of Review
In reviewing a Report and Recommendation (“R&R”), the district court “may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1).

In absence of objections, the Court may adopt a 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)(1)(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.
Having conducted a review of the full record and the applicable law, and having reviewed the
R&R de novo, the Court adopts the factual and procedural findings in the thorough R&R in their

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entirety. Furthermore, the Court accepts the recommendation that sanctions are warranted. The
nature of those sanctions, though, require further consideration.
Discussion
Plaintiff’s Prodigious Litigation Background
This is far from Mr. O’Neal’s first experience with federal litigation; indeed, he has vast
experience litigating his own cases and having cases dismissed for failure to comply with rules
and court directives. His unremitting filing of pro se claims has resulted in a weighty, disquieting
catalog of published decisions. See, e.g., O'Neal v. Spota, 744 F. App'x 35, 36–37 (2d Cir. 2018);
O'Neal v. New York, 465 F. Supp. 3d 206 (E.D.N.Y. 2020) (habeas petition which included claims
for tort damages); O'Neal v. McGuire, No, 18-CV-5506 (JFB)(GRB), 2019 WL 2013775
(E.D.N.Y. May 6, 2019); O'Neal v. Spota, No. 16-CV-579 (JFB)(GRB), 2017 WL 118044
(E.D.N.Y. Jan. 12, 2017); O'Neal, 2017 WL 4174788, at *1. Remarkably, and in seeming
contravention of law, his advocacy has extended beyond his own claims; though he is not, to this
Court’s knowledge, an attorney, O’Neal has purportedly “represented” other pro se litigants.
Beckman v. James Pena Ayan Grp., Inc., No. 21-CV-4374 (JS)(AKT), 2021 WL 3709234, at *1
(E.D.N.Y. Aug. 20, 2021) (observing that pleadings bore the caption “Represented by Brontie
O'Neal”); Malone v. Byrns, 18-CV-6164 (JMA)(ARL), 2019 WL 1471088 (E.D.N.Y. Apr. 3,
2019) (describing involvement in preparing pro se status report by O’Neal, a frequent litigator in
this Court”). O’Neal had an appeal dismissed by the Second Circuit Court of Appeal, which ruled:
O'Neal’s brief does not challenge the substance of the district court's January 12,
2017 dismissal of his claims against the county defendants or its September 19,
2017 order adopting the magistrate judge's recommendation to dismiss O'Neal’s
claims against the town and individual defendants. Nor does his brief identify any
issues on appeal, set forth coherent arguments, or cite the record or legal authority,
as required under Rule 28. Despite the “latitude” we afford pro se litigants,
O'Neal’s failure to comply with Rule 28 is fatal to his appeal.

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Additionally, O'Neal waived his right to judicial review of the magistrate judge's
report and recommendation (“R & R”) by failing to timely object. This rule applies
to pro se litigants if the magistrate judge expressly warns a pro se litigant that a
failure to timely object will waive further judicial review and cites relevant
statutory and civil rules authority. Because O'Neal did not object to the magistrate
judge's R&R recommending dismissal of his claims against the town and individual
defendants despite having received an express warning about the consequences of
his failure to do so, these claims are waived.
O'Neal v. Spota, 744 F. App'x 35, 36–37 (2d Cir. 2018) (alterations omitted). In 2019, then-District
Judge Joseph Bianco denied O’Neal’s motion for in forma pauperis status under the “three-strikes”
provision of 28 U.S.C. §1915(g), noting that plaintiff “has at least four disqualifying actions” and
commenting upon “plaintiff's history of vexatious litigation.”

O'Neal v. McGuire, 2019 WL

2013775, at *2 (E.D.N.Y. 2019). O’Neal has, in still other cases, been frequently warned of the
consequences of non-compliance. See, e.g. O'Neal v. Spota, 2017 WL 118044 (E.D.N.Y. 2017)
(“If plaintiff again fails to plead sufficient facts in his amended complaint, or if he fails to file an

amended complaint within thirty (30) days, he will not have another opportunity to re-plead, and
the Court will enter judgment”).
All of this history proves relevant in determining the proper disposition of the instant
action.
Conduct in the Instant Action
The detailed recitation of O’Neal’s conduct – and misconduct – in this case set forth in
Judge Lindsay’s Report and Recommendation (familiarity with which is assumed) is incorporated
by reference herein. Judge Lindsay describes the litany of non-compliance by O’Neal, as well as
the Herculean -- if ultimately fruitless -- efforts by judges of this Court, as well as defendants’
counsel, to obtain cooperation from O’Neal in the reasoned litigation of this matter. Paradoxically,
O’Neal seemed disinclined to comply with deadlines and direction, yet would regularly barrage

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the Court and adversaries with motions and applications that were entirely inappropriate, irrelevant
and immaterial.

Indeed, for nearly two years, the Court and counsel have unsuccessfully

endeavored to obtain his participation in submitting a pre-trial order, such that the matter could be
set down for trial, which gives rise to the instant motion. DE 179. As Judge Lindsay notes,
plaintiff was repeatedly “warned that failure to comply with the order could result in a
recommendation of sanctions, including, but not limited to, a recommendation that the case be
dismissed with prejudice for failure to prosecute and to comply with court orders pursuant to Fed.
R. Civ. P. 37 and 41.” DE 180 at 4. Notwithstanding many failures, Judge Lindsay repeatedly
granted O’Neal extensions, always careful to repeat the admonishments concerning potential
consequences. Id. The warnings had little effect.
Judge Lindsay summarized plaintiff’s egregious conduct and the very real impact of this
conduct on the Court and the defendants:
In this case, O’Neal has been cautioned numerous times that if he failed to respond
to the Court’s orders, he would run the risk of the undersigned recommending that
his case be dismissed. O’Neal has disregarded the Court’s clear instructions with
respect to the joint pretrial order and has instead filed documents of his own
choosing. While the Court has attempted to foster completion of a pretrial order
that complies with the District Judge’s individual rules for years, the Court has not
succeeded due to O’Neal’s willful noncompliance. Nonetheless, the defendants
will be substantially prejudiced should this case remain open, to say nothing
of the need to alleviate court congestion where the plaintiff has been
nonresponsive.
Id. at 7 (emphasis added). Judge Lindsay properly concludes that O’Neal’s conduct warrants the
imposition of sanctions, and that the sanction of dismissal under Rules 37 and 41, under the
standards articulated by the Second Circuit, would not be inappropriate. Id. (citing Ruzsa v.
Rubenstein & Sendy Attys at Law, 520 F.3d 176, 177 (2d Cir. 2008)) and Nieves v. City of New

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York, 208 F.R.D. 531, 535 (S.D.N.Y.2002) (citing Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d
849 (2d Cir.1995)).
Rather than dismissal, which she correctly notes should be reserved for “extreme
circumstances,” id. (citing Salahuddin v. Harris, 782 F.2d 1127, 1132 (2d Cir. 1986)), Judge
Lindsay recommends preclusion of evidence. Specifically, she recommends that the case be
allowed to proceed to trial, but that O’Neal not be allowed to submit any exhibits (other than those
identified by defendants) and only be permitted to call two witnesses identified in DE 170. 2
However, Judge Lindsay’s largesse discounts two factors. The first is plaintiff’s extensive
history of frivolous litigation. 3 While misdeeds in other cases are not a basis for dismissal here,
the numerous warnings and notice he has received concerning the potential consequences of noncompliance in this case weigh even more heavily, given the numerous warnings – and actual
sanctions – he has faced in other cases. The second is the unfair impact upon defendants. This
matter has dragged on for years – imposing significant and entirely unnecessary litigation costs
upon defendants and burdens on the Court.

Adding the costs and burdens of a trial seems unfair

and unwarranted. As such, the Court, in its discretion, will dismiss the action under Rules 37 and
41 of the Federal Rules of Civil Procedure based upon plaintiff’s egregious and unwarranted noncompliance with Court orders and failure to prosecute the action.
Conclusion
For the reasons set forth above, the case is DISMISSED. The Clerk of the Court is directed
to enter judgment consistent with this Order and close the case.

Those two witnesses – Dave Carr and Gregory Volpe – do not, at first blush, appear to have anything to do with
the instant case. That would appear to render the proposed sanction unworkable.

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In fact, while Judge Lindsay makes note of “seven other actions O’Neal had filed with the Court,” DE 180 at 2, a
historical search of the ECF database (which includes closed cases), suggests that O’Neal has filed twice that
number.

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The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the pro
se plaintiff.
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.
Dated: Central Islip, New York
September 23, 2021

/s/ Gary R. Brown
HON. GARY R. BROWN
United States District Judge

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