Kamysheva v. Walker et al
Filing
22
DECISION AND ORDER adopting Magistrate Judge Baxter's 21 Report and Recommendations and dimissing Plaintiff's complaint in its entirety. Signed by Judge Glenn T. Suddaby on 5/14/2012. (amt) [Pltf served via reg. and cert. mail]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
ANASTASIA KAMYSHEVA,
Plaintiff,
3:11-CV-1041
(GTS/ATB)
v.
LIZ WALKER; ECO VILLAGE;
THE THIRD RESIDENTIAL ECO-VILLAGE
EXPERIENCE; TREE COORDINATING
COMMITTEE; WILLIAM GOODMAN;
WALLACE WATSON; SARAH SILVERSTONE;
RAY STIEFEL; DIANE MALUSO; and
JOHN AND JANE DOES 1-100,
Defendants.
_______________________________________________
APPEARANCES:
OF COUNSEL:
ANASTASIA KAMYSHEVA
Plaintiff, Pro Se
2080 First Avenue, Apt. 1003
New York, New York 10029
SCHLATHER, STUMBAR, PARKS & SALK, LLP
Counsel for Defendants
200 East Buffalo Street
P.O. Box 353
Ithaca, New York 14851
DIANE V. BRUNS, ESQ.
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by Anastasia
Kamysheva (“Plaintiff”) against the above-captioned individuals and entities (“Defendants”)
alleging discrimination in the sale of housing pursuant to 42 U.S.C. § 3604, is the ReportRecommendation of United States Magistrate Judge Andrew T. Baxter recommending that
Plaintiff’s Complaint be dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b) due to
Plaintiff’s failure to prosecute this action. (Dkt. No. 21.) Despite having been notified of her
right to file an Objection to the Report-Recommendation, Plaintiff has not done so, and the
deadline for the filing of such an Objection has expired. (See generally Docket Sheet.)
After carefully reviewing all of the papers in this action, including Magistrate Judge
Baxter’s Report-Recommendation, the Court concludes that the Report-Recommendation is free
of any clear error. (See generally Dkt. No. 21.)1 Magistrate Judge Baxter employed the proper
legal standards, accurately recited the facts, and reasonably applied the law to those facts. (Id.)
Indeed, Magistrate Judge Baxter’s thorough and correct Report-Recommendation would survive
even a de novo review. (Id.)2 As a result, the Court adopts the Report-Recommendation for the
reasons stated therein. (Id.)
The Court would add only four brief points. First, generally, durations of four months
are sufficient to weigh in favor of dismissal for failure to prosecute. See N.D.N.Y. L.R. 41.2(a)
(“[P]laintiff’s failure to take action for four (4) months shall be presumptive evidence of lack of
prosecution.”); Georgiadis v. First Boston Corp., 167 F.R.D. 24, 25 (S.D.N.Y. 1996) (delay of
four months). Here, the Court finds that the durations of Plaintiff’s failure to prosecute is
approximately four months, having begun on January 17, 2012, when she failed to provide to the
1
When no objection is made to a portion of a report-recommendation, the Court
subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error”
review, “the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL
453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections
of [a magistrate judge's] report to which no specific objection is made, so long as those sections
are not facially erroneous.”) (internal quotation marks and citations omitted).
2
When a specific objection is made to a portion of a magistrate judge's reportrecommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C).
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Court a telephone number at which she could be reached for a teleconference. (See generally
Docket Sheet.)
Second, the prejudice posed to Defendants by Plaintiff's failure to prosecute is
exacerbated somewhat by the age of the case (which arises from events allegedly occurring in
2010) and the number of events giving rise to the case. Under the circumstances, a further delay
may well affect the memories of the numerous parties (and presumably witnesses) in the case,
the ability to locate witnesses, and the preservation of evidence (particularly documentary
evidence regarding the housing sale in question). See Geordiadis, 167 F.R.D. at 25 (“The
passage of time always threatens difficulty as memories fade. Given the age of this case, that
problem probably is severe already. The additional delay that plaintiff has caused here can only
make matters worse.”).
Third, under the circumstances, the need to alleviate congestion on the Court’s docket
outweighs Plaintiff’s right to receive a further chance to be heard in this case. It is the need to
monitor and manage dilatory cases like this one that delay the resolution of other cases, and that
contribute to the Second Circuit's relatively long median time to disposition for pro se civil rights
cases.
Fourth, and finally, the Court has carefully considered sanctions less drastic than
dismissal with prejudice, and has found them to be inadequate under the circumstances,
especially given the blatant nature of Plaintiff’s disregard for the Orders of this Court.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Baxter’s Report-Recommendation (Dkt. No. 21) is
ACCEPTED and ADOPTED in its entirety; and it is further
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ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED with prejudice in its
entirety.
The Clerk’s Office is directed to enter judgment and close this action.
Dated: May 14, 2012
Syracuse, New York
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