Poniatowski v. Johnson

Filing 36

ORDER ADOPTING REPORT AND RECOMMENDATION for 35 Report and Recommendation. The R & R is adopted in its entirety, and the action is dismissed without prejudice. (Docket# 35.) The Clerk is directed to close this case. This Court certifies pursua nt to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and in forma pauperis status is denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (As further set forth in this Order.) (Signed by Judge P. Kevin Castel on 6/21/2016) (kko)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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DOROTHY PONIATOWSKI,
Plaintiff,

15-cv-1330 (PKC)

-againstORDER ADOPTING REPORT
AND RECOMMENDATION

USJ>CSDNY

JEH JOHNSON,

OOCU14NT

Defendant.

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CASTEL, U.S.D.J.

ELEQ'RONICAUY FILED

DOC~----~------'JJ
DATS FILEl>: I~Cl I;' I &
·~.

Plaintiff Dorothy Poniatowski, proceeding in forma pauperis and on her own
behalf prose, filed her complaint on February 23, 2015. (Docket# 2.) She brings a single claim
of employment discrimination against Jeh Johnson, the Secretary of the United States
Department of Homeland Security, in his official capacity. (Docket# 2.) On April 8, 2015, the
undersigned referred this case to Magistrate Judge Sarah Netbum for general pretrial
supervision. (Docket# 7.)
On May 9, 2016, Magistrate Judge Netburn issued a Report & Recommendation
("R & R") recommending that this case be dismissed without prejudice for failure to prosecute.
(Docket# 35.) The R & R advised Poniatowski of her right to object to the R & R, but
Poniatowski has submitted no objections and has made no other communications with the Court.
In reviewing a report and recommendation, 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)(l).

As described in the R & R, in nine instances, Poniatowski either failed to appear
at court-ordered conferences or missed court-ordered deadlines. (R & Rat 3-4.) On three
occasions, Magistrate Judge Netburn warned Poniatowski that failure to comply with court
orders could result in dismissal for failure to pursue her claims. (R & Rat 3-4.)
Amid this history of repeated non-compliance, Poniatowski once appeared in a
September 2015 telephonic court conference, and family members communicated with
Magistrate Judge Netburn to explain that Poniatowski was in ill health. (R & Rat 1-2.) Indeed, ·
on December 4, 2015, Magistrate Judge Netburn stayed all deadlines for 60 days after
Poniatowski's husband stated that Poniatowski was temporarily unable to prosecute her case for
personal reasons. (R & Rat 2.) Once those 60 days lapsed, Poniatowski's non-compliance
continued. (R & Rat 2-3.)
As described in the R & R, Poniatowski's non-compliance has persisted since
July 2015; she was warned three times that failure to comply with court orders could result in
dismissal; the delay has prejudiced defendants; and the failure to comply with Court orders "has
made it impossible for the Court to manage this litigation." (R & Rat 3-4.) This is sufficient to
warrant dismissal for failure to prosecute. See,~' Baptiste v. Sommers, 768 F.3d 212, 216 (2d
Cir. 2014).
This Court concludes that the R & R is thorough, well-reasoned and based in law.
The R & R is therefore adopted, and this case is dismissed without prejudice.
CONCLUSION.
The R & R is adopted in its entirety, and the action is dismissed without
prejudice. (Docket# 35.) The Clerk is directed to close this case.

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This Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith and in forma pauperis status is denied. See Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).

&lY

SO ORDERED.

7J>:Kevin Castel

United States District Judge
Dated: New York, New York
June 21, 2016

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