Bertrand et al v. Demmon et al
Filing
38
DECISION AND ORDER: ORDERED that Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 37 ) is ACCEPTED and ADOPTED in its entirety. ORDERED that Defendants' motion to dismiss Plaintiff Damien Bruce's claims pursuant to Fed. R. Civ. P. 41(b) (Dkt. No. 15 ) is GRANTED. ORDERED that Plaintiff Damien Bruce's claims in Waver v. Demmon, 15-CV-0403 (N.D.N.Y. filed Apr. 3, 2015), are DISMISSED. Signed by Chief Judge Glenn T. Suddaby on 5/13/16. (nas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
JAMES BERTRAND, et al.,
Plaintiffs,
9:14-CV-1456 (GTS/DEP)
(LEAD CASE)
v.
CRAIG DEMMON, et al.,
Defendants.
__________________________________________
JAMEL WEAVER, et al.,
Plaintiffs,
9:15-CV-0403 (GTS/DEP)
(MEMBER CASE)
v.
CRAIG DEMMON, et al.,
Defendants.
__________________________________________
SHANE GORDON, et al.,
Plaintiffs,
9:15-CV-1233 (GTS/DEP)
(MEMBER CASE)
v.
CRAIG DEMMON, et al.,
Defendants.
__________________________________________
JONATHAN HINES, et al.,
Plaintiffs,
v.
CRAIG DEMMON, et al.,
Defendants.
__________________________________________
9:16-CV-0061 (GTS/DEP)
(MEMBER CASE)
APPEARANCES:
OF COUNSEL:
LAW OFFICES OF ELMER R. KEACH
Plaintiffs, Pro Se
One Pine West Plaza, Suite 109
Albany, New York 12205
ELMER R. KEACH, III, ESQ.
MARIA K. DYSON, ESQ.
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224
TIMOTHY P. MULVEY, ESQ.
Assistant Attorney General
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in these consolidated prisoner civil rights actions filed by the
above-captioned Plaintiffs against the above-captioned individuals employed by the New York
State Department of Corrections and Community Supervision at Bare Hill Correctional Facility
in Malone, New York (“Defendants”), are (1) Defendants’ motion to dismiss Plaintiff Damien
Bruce’s claims in Waver v. Demmon, 15-CV-0403 (N.D.N.Y. filed Apr. 3, 2015), pursuant to
Fed. R. Civ. P. 41(b), and (2) United States Magistrate Judge David E. Peebles’ ReportRecommendation recommending that Defendants’ motion be granted and Plaintiff Damien
Bruce’s claims be dismissed. (Dkt. Nos. 15, 37.) None of the parties have filed objections to the
Report-Recommendation, and the deadline by which to do so has expired. (See generally
Docket Sheet.) After carefully reviewing the relevant papers herein, including Magistrate Judge
Peebles’ thorough Report-Recommendation, the Court can find no clear-error in the ReportRecommendation.1 Magistrate Judge Peebles employed the proper standards, accurately recited
1
When no objection is made to a report-recommendation, the Court subjects that
report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee
2
the facts, and reasonably applied the law to those facts. As a result, the Report-Recommendation
is accepted and adopted in its entirety for the reasons set forth therein. To those reasons, the
Court adds only that (1) the duration of Damien Bruce’s failure to prosecute is at least fourteen
months (having started, at the latest, when he was released from custody on February 20, 2015),2
(2) Damien Bruce was on notice that failure to comply would result in dismissal, (3) Defendants
are likely to be prejudiced by further delay in the proceedings,3 and (4) the Court’s interest in
managing its congested docket outweighs Damien Bruce’s interest in receiving a further chance
to be heard with regard to his claims.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 37) is
ACCEPTED and ADOPTED in its entirety; and it is further
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 omitted).
2
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) (finding delay of four months to be sufficient).
3
More specifically, the Court finds that, given the age of the case and number of
events giving rise to Plaintiff Damien Bruce's claims, a further delay may well affect witnesses'
memories, the ability to locate witnesses (who might retire from, or be transferred within, the
New York State Department of Corrections and Community Supervision), and the preservation
of evidence. 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.”).
3
ORDERED that Defendants’ motion to dismiss Plaintiff Damien Bruce’s claims
pursuant to Fed. R. Civ. P. 41(b) (Dkt. No. 15) is GRANTED; and it is further
ORDERED that Plaintiff Damien Bruce’s claims in Waver v. Demmon, 15-CV-0403
(N.D.N.Y. filed Apr. 3, 2015), are DISMISSED.
Dated: May 13, 2016
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
Chief United States District Judge
4
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