Idlisan v. SUNY Upstate Medical University et al

Filing 54

ORDER granting 49 Motion to Dismiss; adopting Report and Recommendations re 53 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Dancks' Report-Recommendation is ADOPTED in its entirety for the reasons stated therei n; and the Court further ORDERS that Plaintiff's complaint is DISMISSED without prejudice; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve the parties with a copy of this Order in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 7/14/15. [mailed copy to plaintiff via certified mail/return receipt] (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
BERNARD B. IDLISAN,
Plaintiff,
vs.

5:12-CV-1790
(MAD/TWD)

SUNY UPSTATE MEDICAL UNIVERSITY,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

BERNARD IDLISAN
1402 Jefferson Avenue
1st Floor
Brooklyn, New York 11237
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendant

KEVIN M HAYDEN, ESQ.
Assistant Attorney General

Mae A. D'Agostino, U.S. District Judge:
ORDER
On December 5, 2012, Plaintiff commenced this pro se civil rights action claiming that
Defendant SUNY Upstate Medical University failed to hire him because of his disability. See
Dkt. No. 1. On February 7, 2013, the Court granted Plaintiff's motion to proceed forma pauperis.
See Dkt. No. 4. On March 28, 2013, Magistrate Judge Dancks granted Plaintiff's motion to file an
amended complaint and denied Plaintiff's motion for appointment of counsel. See Dkt. No. 8. On
April 11, 2013, Plaintiff filed an amended complaint. See Dkt. No. 15. A few weeks later on
April 29, 2013, Defendant filed a motion to dismiss. See Dkt. No. 19-1. On October 29, 2013,
the Court denied Defendant's motion to dismiss. See Dkt. No. 30. Defendant then filed an

answer to Plaintiff's amended complaint on November 19, 2013 and subsequently on December 2,
2013, Plaintiff filed a motion for summary judgment. See Dkt. Nos. 34, 36. On August 7, 2014,
the Court denied Plaintiff's motion for summary judgment. See Dkt. No. 43.
On February 6, 2015, Defendant filed a motion pursuant to Federal Rule of Civil
Procedure 37(d) to dismiss or strike the complaint as a sanction for Plaintiff's failure to appear at
his properly noticed deposition. See Dkt. No. 49-1 at 4-5. From August 2014 to April 2015,
Plaintiff failed to appear at two scheduled depositions and three telephone conferences. See Dkt.
No. 53 at 2-4. Further, Plaintiff failed to provide any explanation for his absence and failed to
pay the Court ordered monetary sanctions. See id. at 4. Plaintiff has not made contact with the
Court since January 13, 2014. See Dkt. No. 42.
In a Report-Recommendation, Magistrate Judge Dancks recommended that the Court
dismiss this action without prejudice pursuant to Rule 37(b)(2)(A)(v) of the Federal Rules of
Civil Procedure for Plaintiff's failure to appear at his properly noticed deposition. See Dkt. No.
53 at 3, 5. Neither party objected to Magistrate Judge Dancks' Report-Recommendation.
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After the appropriate review, "the 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).
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A litigant's failure to file objections to a magistrate judge's report and recommendation,
even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to
object to any purported error or omission in a magistrate judge's report waives further judicial
review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice
is sufficient if it informs the litigant that the failure to timely object will result in the waiver of
further judicial review and cites pertinent statutory and civil rules authority. See Frank v.
Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d
15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the report explicitly states
that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
"[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d
652 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to
"make reasonable allowances to protect pro se litigants" from inadvertently forfeiting legal rights
merely because they lack a legal education. Govan v. Campbell, 289 F. Supp. 2d 289, 295
(N.D.N.Y. 2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
Having reviewed Magistrate Judge Dancks' Report-Recommendation and the applicable
law, the Court finds that Magistrate Judge Dancks correctly recommended that the Court should
dismiss this action pursuant to Rule 37(b)(2)(A)(v) of the Federal Rules of Civil Procedure for
Plaintiff's failure to appear at his properly noticed deposition. Magistrate Judge Dancks properly
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considered the relevant factors applicable to the pending motion in determining that the severity
of Plaintiff's conduct warrants dismissal as opposed to some lesser sanction.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Dancks' Report-Recommendation is ADOPTED in its
entirety for the reasons stated therein; and the Court further
ORDERS that Plaintiff's complaint is DISMISSED without prejudice; and the Court
further
ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve the parties with a copy of this Order in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: July 14, 2015
Albany, New York

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