Barber v. United States of America

Filing 9

DECISION AND ORDER: ACCEPTING and ADOPTING the # 7 Report and Recommendations of Magistrate Judge David E. Peebles; DISMISSING plaintiff's # 1 complaint without prejudice; and directing the Clerk to enter judgment and close this action. Signed by Judge Glenn T. Suddaby on 5/14/2012. {Copy served upon pro se plaintiff via regular and certified mail # 9171 9690 0935 0011 7877 99} (mae)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
TRACY BARBER,
Plaintiff,
3:11-CV-1100
(GTS/DEP)

v.
UNITED STATES OF AMERICA,
Defendant.
________________________________________
APPEARANCES:

OF COUNSEL:

TRACY BARBER
Plaintiff, Pro Se
189 Pearl Street
Corning, New York 14830
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by Tracy Barber
(“Plaintiff”) against the United States (“Defendant”) pursuant to 18 U.S.C. § 242, is the ReportRecommendation of United States Magistrate Judge David E. Peebles recommending that
Plaintiff’s Complaint (filed on September 16, 2011) be dismissed without prejudice pursuant to
Fed. R. Civ. P. 41(b) due to Plaintiff’s failure to prosecute this action. (Dkt. No. 7.) 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
Peebles’ Report-Recommendation, the Court concludes that the Report-Recommendation is free

of any clear error. (See generally Dkt. No. 7.)1 Magistrate Judge Peebles employed the proper
legal standards, accurately recited the facts, and reasonably applied the law to those facts. (Id.)
Indeed, Magistrate Judge Peebles’ 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 duration of Plaintiff’s failure to prosecute is
approximately four months, having begun on January 16, 2012, when she failed to either file an
affidavit of service for Defendant or submit a status report concerning her efforts to accomplish
service. (See generally Docket Sheet.)
Second, the prejudice posed to Defendant by Plaintiff's failure to prosecute is exacerbated
somewhat by the age of the case (which arises from events allegedly occurring as far back as
2009) and the number of events giving rise to the case. Under the circumstances, a further delay

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).
2

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, 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 Peebles’ Report-Recommendation (Dkt. No. 7) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED without prejudice.
The Clerk’s Office is directed to enter judgment and close this action.
Dated: May 14, 2012
Syracuse, New York

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