Conklin v. Bowen et al

Filing 66

ORDER: ORDERED that the Report-Recommendation and Order (Dkt. No. 58 ) is ADOPTED in its entirety. ORDERED that defendants' motion (Dkt. No. 52 ) is granted in part and denied in part as follows: DENIED with respect to defendants' moti on to dismiss; and GRANTED in all other respects. ORDERED that the Clerk terminate Doctor Ramineni as a defendant. ORDERED that plaintiff is directed to demonstrate compliance with the court's monetary sanction of $450.00 on or before April 6, 2018. Signed by Senior Judge Gary L. Sharpe on 3/22/18. (served on plaintiff by regular mail and certified mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JOSHUA CONKLIN,
Plaintiff,

9:14-cv-1098
(GLS/CFH)

v.
SERGEANT M. BOWEN et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Joshua Conklin
Pro Se
31 Lumber Street
Port Jervis, NY 12771
FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, New York 12224

LYNN M. KNAPP BLAKE
Assistant Attorney General

Gary L. Sharpe
Senior District Judge
ORDER
On July 11, 2017, Magistrate Judge Christian F. Hummel filed a
Report-Recommendation and Order (R&R), which recommends that
defendants’ motion, (Dkt. No. 52), be denied as it relates to dismissal

pursuant to Fed. R. Civ. P. 41(b), (Dkt. No. 58 at 9), and granted as it
relates to partial summary judgment pursuant to Fed. R. Civ. P. 56, (id. at
21, 22). Pending before the court are defendants’ objections to the
recommended denial of their motion to dismiss.1 (Dkt. No. 59.)
Defendants argue that Judge Hummel did not properly weigh or
consider certain relevant factors in reaching his determination that
dismissal was not warranted under Rule 41(b). (Id. at 2.) Specifically,
defendants contend that Judge Hummel did not consider the duration of
Conklin’s non-compliance with previous court-ordered sanctions, the fact
that a sanction less than dismissal would have no efficacy, that Conklin’s
pro se status is not an excuse to disobey court orders, and Conklin’s
ongoing non-compliance with court orders. (Id.) Although these gripes are
specific, they nonetheless only trigger review for clear error because they
reiterate previous arguments made by defendants in their motion. (See
Dkt. No. 52, Attach. 11 at 2-5); see also Almonte v. N.Y.S. Div. of Parole,
No. Civ. 904CV484, 2006 WL 149049, at *5-6 (N.D.N.Y. Jan. 18, 2006).
After reviewing the R&R, there is no apparent, let alone clear, error in
Judge Hummel’s application of the appropriate balancing test. (Dkt. No. 58
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Conklin has not objected to the R&R.

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at 4-9) (citing Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)).
Accordingly, the court adopts the R&R in its entirety.
Nonetheless, the court is aware that Conklin has failed to appear at
three duly-noticed depositions, attend a court-ordered teleconference, and
timely provide notice of a changed address on multiple occasions. (Dkt.
Nos. 13, 28, 32, 33, 42, 43, 58 at 2-3.) Perhaps most concerning, at the
time defendants filed their objection, Conklin had flouted a prior courtordered sanction for over eight months. (Dkt. No. 46; Dkt. No. 59 at 2.)
Although Conklin was incarcerated for the majority of this lawsuit, he was
paroled on July 13, 2017, (Dkt. No. 61), yet the court has no reason to
believe that he has remedied such noncompliance. His last
communication with the court was to belatedly notify it of his address
change on July 31, 2017. (Dkt. No. 62.)
As such, Conklin is directed to demonstrate compliance with Judge
Hummel’s previous order, (Dkt. No. 46), on or before April 6, 2018. In the
event that such compliance is not demonstrated, the court will dismiss the
complaint pursuant to Rule 41(b) for failure to comply with court orders.
Accordingly, it is hereby
ORDERED that the Report-Recommendation and Order (Dkt. No.
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58) is ADOPTED in its entirety; and it is further
ORDERED that defendants’ motion (Dkt. No. 52) is granted in part
and denied in part as follows:
DENIED with respect to defendants’ motion to dismiss; and
GRANTED in all other respects; and it is further
ORDERED that the Clerk terminate Doctor Ramineni as a defendant;
and it is further
ORDERED that plaintiff is directed to demonstrate compliance with
the court’s monetary sanction of $450.00 on or before April 6, 2018; and it
is further
ORDERED that the Clerk provide a copy of this Order to the parties
in accordance with the Local Rules of Practice.
IT IS SO ORDERED.
March 22, 2018
Albany, New York

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