Tyler et al v. Toulon et al

Filing 49

ORDER: By sua sponte and Recommendation dated December 22, 2022, Magistrate Judge James M. Wicks recommended dismissal of the action for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). (ECF No. 47 .) No objections have been filed an d the time for doing so has since passed. For the reasons stated below (SEE ATTACHED ORDER FOR DETAILS), the report is adopted in its entirety. The Court has reviewed the record and the unopposed Report and Recommendation for clear error and, finding none, hereby adopts Judge Wicks's Report and Recommendation in its entirety as the opinion of the Court. Accordingly, the Court dismisses the action with prejudice for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure. The Clerk of Court is directed to mail a copy of this Order to Plaintiff at the address of record and close this case. So Ordered by Judge Joan M. Azrack on 1/18/2023. c/m to pro se plaintiff (LC)

Case 2:21-cv-02417-JMA-JMW Document 49 Filed 01/18/23 Page 1 of 2 PageID #: 194
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------------X
MESSIAH JEFFERSON,
Plaintiff,
-againstSHERIFF ERROL D. TOULON, et al.,
Defendants.
----------------------------------------------------------------------X
AZRACK, United States District Judge:

For Online Publication Only

ORDER
21-CV-2417 (JMA) (JMW)
FILED 
CLERK 

12:02 pm, Jan 18, 2023

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

By way of Complaint dated April 26, 2021, Plaintiff Messiah Jefferson (“Plaintiff”), Steven
Burton-Whitmore and Milo Tyler, all proceeding pro se, commenced this action against
Defendants Sheriff Errol D. Toulon, Warden Franchi and multiple unnamed Suffolk County law
enforcement officials, pursuant to 42 U.S.C § 1983. (ECF No. 1.) Burton-Whitmore’s and Tyler’s
claims were dismissed by this Court on October 16, 2021, leaving Jefferson is the remaining
Plaintiff. (See ECF No. 16 (dismissal order); ECF No. 29 (order denying reconsideration)).
In short, Plaintiff alleges that he was assessed “false disciplinary charges” while
incarcerated at Yaphank Correctional Facility on January 16, 2021. (Id. at 6.) Plaintiff further
claims that he was injured as a result of an alleged assault that arose from a strip search based on
false allegations of possession and use of marijuana and alleges that the disciplinary process was
circumvented resulting in due process violations under the 14th Amendment. (See generally Id.)
While Plaintiff appeared at a February 17, 2022, initial conference before Magistrate Judge
James M. Wicks, and one subsequent status conference, he failed to appear at three consecutive
status conferences or otherwise comply with additional court orders. (See, e.g., ECF Nos. 30, 38,
40-46.) By sua sponte Report and Recommendation dated December 22, 2022, Magistrate Judge
James M. Wicks recommended dismissal of the action for failure to prosecute pursuant to Fed. R.

Case 2:21-cv-02417-JMA-JMW Document 49 Filed 01/18/23 Page 2 of 2 PageID #: 195
Civ. P. 41(b). (ECF No. 47.) No objections have been filed and the time for doing so has since
passed. For the reasons stated below, the report is adopted in its entirety.
“Where parties receive clear notice of the consequences, failure to timely object to a
magistrate’s report and recommendation operates as a waiver of further judicial review of the
magistrate’s decision.” Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015) (quoting Mario v. P &
C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002)); -see --also --------------------Phillips v. Long Island R.R. Co.,
832 F. App’x 99, 100 (2d Cir. 2021) (same). In the absence of any objections, “the district court
need only satisfy itself that there is no clear error on the face of the record.” Estate of Ellington
ex rel. Ellington v. Harbrew Imports Ltd., 812 F. Supp. 2d 186, 189 (E.D.N.Y. 2011) (internal
citations omitted).
The Court has reviewed the record and the unopposed Report and Recommendation for
clear error and, finding none, hereby adopts Judge Wicks’s Report and Recommendation in its
entirety as the opinion of the Court.
Accordingly, the Court dismisses the action with prejudice for failure to prosecute under
Rule 41(b) of the Federal Rules of Civil Procedure. The Clerk of Court is directed to mail a copy
of this Order to Plaintiff at the address of record and close this case.

SO ORDERED.
Dated: January 18, 2023
Central Islip, New York

/s/ (JMA)
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE

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