Bonano v. Sheahan et al

Filing 126

DECISION AND ORDER adopting Report and Recommendations re 123 Report and Recommendations to the extent it recommended dismissal of Plaintiff's complaint with prejudice for failure to prosecute pursuant to Rule 41(b). The Court notes that Defen dant Tillinghast has asserted a counterclaim for assault and battery against Plaintiff (Dkt. 36 at 4). The R&R recommended dismissal of the "action" and Defendant Tillinghast has not filed any objections. Nonetheless, out of an abundance of caution, the Court will dismiss the counterclaim without prejudice based on the declination of supplemental jurisdiction over that state law counterclaim, to the extent it remained pending. The Clerk of Court is directed to enter judgment in favor of Defendants and close the case. Signed by Hon. Elizabeth A. Wolford on 5/6/24. (JHF) This was mailed to: Michael Bonano, 349-220-1734, Unit 2A-A, Vernon C. Bain Center, 1 Halleck Street, Bronx, NY 10474.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL BONANO,
DECISION AND ORDER
Plaintiff,
v.

6:18-CV-6405 EAW

LOUIS E. TILLINGHAST, et al.,
Defendants.

INTRODUCTION

Pro se plaintiff Michael Bonano (“Plaintiff”) initiated this action pursuant to 42
U.S.C. § 1983 on June 1, 2018. (Dkt. 1). Currently pending before the Court is a Report
and Recommendation (the “R&R”) issued by United States Magistrate Judge Marian W.
Payson recommending the dismissal of Plaintiff’s claims with prejudice for failure to
prosecute pursuant to Federal Rule of Civil Procedure 41(b). (Dkt. 123). For the reasons
set forth below, the Court adopts the R&R and dismisses Plaintiff’s claims with prejudice,
but the counterclaim asserted by Defendant Tillinghast is dismissed without prejudice
because to the extent it remains pending, the Court declines to exercise supplemental
jurisdiction.
BACKGROUND
As set forth in more detail in the R&R, Plaintiff last provided the Court with an
updated address on March 15, 2023. (Dkt. 123 at 1). On November 20, 2023, Judge
Payson scheduled a telephone status conference for December 6, 2023, at 11:00 a.m., at
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which Plaintiff failed to appear. (Id. at 2). The notice for the conference was returned to
the Court as undeliverable. (Id.). The telephone status conference was rescheduled for
January 10, 2024, by Order dated December 7, 2023. (Id.). The Order specifically advised
plaintiff that “should plaintiff fail to appear for the January 10, 2024 telephone status
conference, this Court w[ould] issue an Order to Show Cause why the case should not be
dismissed for failure to prosecute.” (Id.). This order was also returned as undeliverable,
and Plaintiff again failed to appear for the conference. (Id. at 3).
On February 6, 2024, Judge Payson issued an Order to Show Cause why the matter
should not be dismissed with prejudice for failure to prosecute. (Dkt. 121). The Order to
Show Cause directed Plaintiff to respond by February 29, 2024, and warned him that failure
to comply would “result in the recommendation of the dismissal of this action with
prejudice pursuant to Fed. R. Civ. P. 41(b).” (Id.). The Order to Show cause was mailed
to Plaintiff at his address of record, and returned as undeliverable. (Dkt. 122). Plaintiff
did not respond to the Order to Show Cause.
On April 16, 2024, Judge Payson issued the R&R, recommending that Plaintiff’s
case be dismissed with prejudice for failure to prosecute pursuant to Rule 41(b). (Dkt.
124). The R&R was also returned as undeliverable (Dkt. 124; Dkt. 125), and Plaintiff did
not file objections to the R&R.
DISCUSSION
Pursuant to 28 U.S.C. § 636(b)(1), the parties had 14 days to file objections to the
R&R. No objections were filed. The Court is not required to review de novo those portions
of a report and recommendation to which objections were not filed. See Mario v. P & C
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Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Where parties receive clear notice of
the consequences, failure [to timely] object to a magistrate’s report and recommendation
operates as a waiver of further judicial review of the magistrate’s decision.”).
Notwithstanding the lack of objections, the Court has conducted a careful review of the
R&R, as well as the prior proceedings in the case, and finds no reason to reject or modify
the R&R. Accordingly, Plaintiff’s claims will be dismissed with prejudice for failure to
prosecute.
CONCLUSION
For the foregoing reasons, the Court adopts the R&R (Dkt. 123) to the extent it
recommended dismissal of Plaintiff’s complaint with prejudice for failure to prosecute
pursuant to Rule 41(b).

The Court notes that Defendant Tillinghast has asserted a

counterclaim for assault and battery against Plaintiff.

(Dkt. 36 at 4).

The R&R

recommended dismissal of the “action” and Defendant Tillinghast has not filed any
objections thereto. Nonetheless, out of an abundance of caution, the Court will dismiss the
counterclaim without prejudice based on the declination of supplemental jurisdiction over
that state law counterclaim, to the extent it remained pending. The Clerk of Court is
directed to enter judgment in favor of Defendants and close the case.
SO ORDERED.
________________________________
ELIZABETH A. WOLFORD
Chief Judge
United States District Court
Dated:

May 6, 2024
Rochester, New York
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