Pagan v. City of Rochester et al

Filing 45

-CLERK TO FOLLOW UP- ORDER ADOPTING REPORT AND RECOMMENDATIONS of Honorable Marian W. Payson dated February 13, 2015 in its entirety and dismissing plaintiff's complaint with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/27/15. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
MIGUEL PAGAN,
Plaintiff,

13-CV-6150T
DECISION
and ORDER

v.
MONROE COUNTY, et.

al.

Defendants.
________________________________________
Plaintiff Miguel Pagan (“Pagan”), proceeding pro se, brings
this

action

against

the

defendants

asserting

constitutional

violations pursuant to 42 U.S.C. § 1983 and various state law
violations. Currently before the Court is an Order to Show Cause
why this case should not be dismissed for failure to prosecute
pursuant to Rule 41(b) of the Local Rules of Civil Procedure for
the United States District Court for the Western District of
New York.
At a October 28, 2014 status conference with the Court, after
plaintiff failed to appear for a prior status conference, he was
advised of his obligation to apprise the Court of his current
address and telephone number. By the Court’s November 5, 2014
order, plaintiff was directed to advise the Court whether he will
proceed pro se by December 1, 2014 and the parties were directed to
submit a proposed amended scheduling order by December 15, 2014. On
January 6, 2015, not having received any communication from Pagan
(including a joint proposed amended scheduling order), the Court
issued an Order to Show Cause why this case should not be dismissed
for failure to prosecute pursuant to Local Rule 41(b).

Pagan had

not advised the Court of any change of address since the October
conference, but the Order to Show Cause, directing him to respond
by January 28, 2015, was returned to the Court as undeliverable.
Because

neither

party

has

filed

an

objection

to

the

February 13, 2015 Report and Recommendation, the parties have
waived their rights to de novo review pursuant to 28 U.S.C.
§ 636(b)(1). See DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir.2000).
Additionally, the Second Circuit has adopted the rule that where
the parties, as here, have received notice of the consequences of
failing to object to a Magistrate Judge’s Report and Recommendation
such a failure shall “operate[] as a waiver of any further judicial
review of the magistrate’s decision.” Small v. Secretary of Health
and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).

Accordingly,

I may only review Magistrate Payson’s Report and Recommendation for
clear error.
For the reasons set forth in Judge Payson’s February 13, 2015
Report and Recommendation, I find that Judge Payson properly
determined that this action should be dismissed for failure to
prosecute.

Accordingly,

I

adopt

Judge

Payson’s

Report

and

Recommendation in its entirety, and Dismiss plaintiff’s Complaint
with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A.

Telesca

MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
March 27, 2015
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