Ashford v. Smith

Filing 23

ORDER SETTING ASIDE Magistrate Judge Scott's 20 Report and Recommendation; REFERRING this case back to Judge Scott as specified. Signed by William M. Skretny, Chief Judge U.S.D.C. on 8/8/2010. (MEAL)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK M A U E R N JEROME ASHFORD, P e titio n e r , v. ORDER 08-CV-393S

S U P E R IN T E N D E N T , Auburn Correctional Facility,

R e s p o n d e n t. 1. On November 10, 2009, Respondent Superintendent, Auburn Correctional

F a c ility, filed a Motion to Dismiss Petitioner's habeas corpus petition as time-barred pursuant to 28 U.S.C. § 2244(d)(1)(D). The Honorable Hugh B. Scott, United States Magistrate J u d g e , directed Petitioner to respond to Respondent's motion by December 11, 2009. 2. Petitioner failed to file a response as directed. On December 21, 2009, By Order dated

P e titio n e r moved for an extension of time to respond to the motion.

D e c e m b e r 28, 2009, Judge Scott granted Petitioner's request and directed Petitioner to re s p o n d to the Motion to Dismiss on or before January 15, 2010. 3. Petitioner again failed to submit a response as directed. Consequently, on

A p ril 26, 2010, Judge Scott issued a Report and Recommendation and recommended that th e petition for a writ of habeas corpus be dismissed pursuant to Rule 41 of the Federal R u le s of Civil Procedure due to Petitioner's failure to prosecute his claims. On April 28, 2 0 1 0 , Respondent filed a letter requesting that this Court adopt the Report and R e c o m m e n d a tio n . 4. By letter dated May 3, 2010, Petitioner objected to Judge Scott's Report and

Recommendation.1 In light of Petitioner's objection to the Report and Recommendation, this C o u rt cannot conclude that he is failing to prosecute his case. He is, however, failing to c o m p ly with the orders of this Court and he may face dismissal of this case, if he continues to do so. See FED. R. CIV. P. 41(b) ("If the plaintiff fails to prosecute or to comply with these ru le s or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision. . .operates a s an adjudication on the merits.") In addition, this Court must set aside Judge Scott's R e p o rt and Recommendation because Petitioner has not received the required warnings p rio r to dismissal for failure to prosecute. See Brown v. General Nutrition Cos., Inc., 356 F e d .A p p x . 482, 486, 2009 W L 4822994 (2d Cir. 2009) (unpublished) (remanding case to the d is tric t court and vacating its dismissal because plaintiffs did not receive notice that "further d e la y" would result in dismissal for failure to prosecute) (quoting United States ex rel. Drake v . Norden Sys., Inc., 375 F.3d 248, 255 (2d Cir. 2004)). 5. This Court will permit Petitioner a third and final opportunity to file and serve

h is response to Respondent's Motion to Dismiss. Petitioner is warned, however, that further d e la y or failure to respond as directed may result in this Court dismissing this case for failure to prosecute. See Link v. W a b a s h Railroad Co., 370 U.S. 626, 630-32, 82 S.Ct. 1386, 8 L .E d . 2d 734 (1962); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982) (n o tin g that, where the defendant has not moved under Rule 41(b), a federal district court m a y nonetheless dismiss a case sua sponte for failure to prosecute). IT HEREBY IS ORDERED, that Judge Scott's Report and Recommendation (Docket

In this letter, Petitioner relies on "the reasons stated in the Objections" and his "m o tio n in o p p o s itio n to the respondent's m o tio n to dism is s the petition" as grounds for this Court to set aside Judge S c o tt's Report and Recom m e n d a tio n . The docket, however, does not contain either subm is s io n that P e titio n e r references.

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No. 20) is set aside in light of Petitioner's recent activity in this case. F U R TH E R , that this case is referred back to Judge Scott for the issuance of a final s c h e d u lin g order on Respondent's Motion to Dismiss (Docket No. 10) re q u is ite warnings regarding faillure to respond. S O ORDERED. to include the

D a te d : August 8, 2010 Buffalo, New York /s/W illia m M Skretny W IL L IA M M. SKRETNY C h ie f Judge United States District Court

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