Lee v. Doe et al

Filing 55

DECISION AND ORDER adopting in its entirety 54 Report and Recommendations. Plaintiff's claims against Non-moving Defendants are dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule of Civil Procedure 41(b) for failure to prosecute. The Clerk of Court is hereby directed to enter judgment in favor of Defendants and close the case. Signed by Hon. Elizabeth A. Wolford on 11/17/22. (JHF) This was mailed to: Kareem Lee.

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
KAREEM LEE,
Plaintiff,
DECISION AND ORDER
v.
6:20-CV-06176-EAW-MJP
INVESTIGATOR JOHN DOE, et al.,
Defendants.
____________________________________
INTRODUCTION

Pro se plaintiff Kareem Lee (“Plaintiff”) initiated this action pursuant to 42 U.S.C.
§ 1983 seeking relief for alleged constitutional violations committed while he was an
inmate at Five Points Correctional Facility (“Five Points”). (Dkt. 1). Currently pending
before the Court is the Report and Recommendation (the “R&R”) issued by United States
Magistrate Judge Mark W. Pedersen recommending the dismissal of Plaintiff’s claims
against defendants D. Gleason, R. Shields, C. McCargar, K. Diana, M. Griffin, A. Sciolino,
Matthew Thoms, and T. Sheldon (collectively “Moving Defendants”) with prejudice
pursuant to Federal Rule of Civil Procedure 41(b). (Dkt. 54).
For the reasons set forth below, the Court adopts the R&R in its entirety, and further
finds that Plaintiff has also failed to prosecute the matter against the remaining, nonmoving defendants. As a result, the case is dismissed with prejudice.

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BACKGROUND
On March 23, 2020, Plaintiff filed the instant complaint alleging violations of 42
U.S.C. § 1983 while he was held at Five Points. (Dkt. 10). On March 31, 2020, the
undersigned issued an Order administratively terminating this action for failure to submit
a completed motion to proceed in forma pauperis or to pay the filing fee. (Dkt. 4). On
April 15, 2020, Plaintiff submitted a completed motion to proceed in forma pauperis and
certification of his inmate account information. (Dkt. 6). Thereafter, the Court granted
Plaintiff’s motion to proceed in forma pauperis and screened the complaint pursuant to 28
U.S.C. § 1915(e)(2)(B), dismissing a number of Plaintiff’s claims unless Plaintiff filed an
amended complaint. (Dkt. 12). On June 4, 2021, Plaintiff filed a motion for an extension
of time to amend the complaint. (Dkt. 13). The undersigned granted Plaintiff’s motion,
extending the deadline to July 7, 2021. (Dkt. 14). However, Plaintiff did not file an
amended complaint. The complaint was thereafter served on Moving Defendants, while
several other defendants remained unserved. (See Dkt. 18; Dkt. 19; Dkt. 20; Dkt. 21; Dkt.
22; Dkt. 23; Dkt. 24; Dkt. 28; Dkt. 49).
On December 21, 2021, this case was referred to Judge Pedersen for all pretrial
matters, excluding dispositive motions. (Dkt. 38). Judge Pedersen scheduled a status
conference for February 9, 2022, and mailed notification of the hearing to Plaintiff. (Dkt.
40). Plaintiff did not appear at the hearing. (See Dkt. 45).
On February 14, 2022, Judge Pedersen issued an Order to Show Cause requiring
Plaintiff to show cause on or before March 11, 2022, as to why the matter should not be
dismissed for failure to prosecute. (Dkt. 46). The Order to Show Cause specifically warned
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Plaintiff that failure to respond to the Order would “result in the Court’s recommendation
that the action be involuntarily dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b).”
(Dkt. 46). The Order to Show Cause was mailed to Plaintiff. (Dkt. 54 at 3). On February
28, 2022, Moving Defendants submitted initial disclosures pursuant to Federal Rule of
Civil Procedure 26 along with a request that Plaintiff execute two forms authorizing
counsel for Moving Defendants to access to Plaintiff’s medical records. (Dkt. 48; Dkt. 501 at ¶ 7; Dkt. 54 at 4). Plaintiff did not respond to the Order to Show Cause or to Moving
Defendants’ discovery request.
On April 25, 2022, Moving Defendants moved to dismiss this case in its entirety.
(Dkt. 50). The Court referred Moving Defendants’ motion to dismiss to Judge Pedersen
for a report and recommendation. (Dkt. 51). Plaintiff did not respond to the Moving
Defendants’ motion to dismiss.
On June 1, 2022, Judge Pedersen issued the R&R, recommending that Plaintiff’s
claims against Moving Defendants be dismissed with prejudice pursuant to Rule 41(b) for
Plaintiff’s failure to prosecute. (Dkt. 54). Specifically, Judge Pedersen notes that Plaintiff
repeatedly failed to comply with the Court’s orders and has taken no affirmative steps to
pursue this action since providing notice to the Court of his change of address in December
2021. (Id. at 5). The R&R further notes that Moving Defendants’ counsel’s last contact
with Plaintiff consisted of a call on March 10, 2022, in which Plaintiff asked “how [counsel
for Moving Defendants] think[s] about the case.” (Id. at 4 (citing Dkt. 50-1 at ¶6)). Moving
Defendants’ counsel recommended that Plaintiff write to the Court and copy counsel. (Id.
(citing Dkt. 50-1 at ¶6)). Plaintiff provided no submissions to the Court. (See id.).
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DISCUSSION
I.

Moving Defendants’ Motion to Dismiss
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
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, the matter will be dismissed as to the Moving Defendants.
II.

Failure to Prosecute as to Remaining Defendants
A number of additional defendants—primarily John Doe defendants—who have not

been identified or served, remain pending in this action.1 (See Dkt. 28; Dkt. 49; Dkt. 54 at
2 n.1). As with Moving Defendants, Plaintiff has taken no action to pursue his claims
against these defendants (the “Non-moving Defendants”) (collectively with Moving
Defendants, “Defendants”).

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One of the remaining, unserved defendants is Raul Hernandez. On January 21,
2022, the Court ordered the New York Attorney General’s Office to provide Hernandez’s
name and an address at which he could be served pursuant to Valentin v. Dinkins, 121 F.3d
72 (2d Cir. 1997). (Dkt. 42). This information was provided to the Court. (Dkt. 44). The
United States Marshals Service was unable to effectuate service on Hernandez. (Dkt. 49).
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Although Non-moving Defendants did not file a motion to dismiss pursuant to Rule
41(b), “the Supreme Court has made clear that a court has the inherent authority to dismiss
an action sua sponte” for failure to prosecute. Thuman v. Dembski, No. 13-CV-01087A(F),
2022 WL 958314, at *3 (W.D.N.Y. Jan. 25, 2022) (citing Link v. Wabash R.R. Co., 370
U.S. 626, 630-31 (1962)), adopted, 2022 WL 954419 (W.D.N.Y. Mar. 30, 2022); accord
Davis v. Town of Hempstead, 597 F. App’x 31, 32 (2d Cir. 2015) (summary order) (“it is
well established that Rule 41(b) ‘gives the district court authority to dismiss a plaintiff’s
case sua sponte for failure to prosecute’”) (quoting LeSane v. Hall’s Sec. Analyst, Inc., 239
F.3d 206, 209 (2d Cir. 2001)). Moreover, this District’s Local Rule of Civil Procedure
41(b) provides:
If a civil case has been pending for more than six (6) months and is not in
compliance with the directions of the Judge or a Magistrate Judge, or if no
action has been taken by the parties in six (6) months, the Court may issue a
written order to the parties to show cause within thirty (30) days why the case
should not be dismissed for failure to comply with the Court’s directives or
to prosecute. The parties shall respond to the order by filing sworn affidavits
explaining in detail why the action should not be dismissed. They need not
appear in person. No explanations communicated in person, over the
telephone, or by letter shall be accepted. If the parties fail to respond, the
Judge may issue an order dismissing the case, or imposing sanctions, or
issuing such further directives as justice requires.
L. R. Civ. P. 41(b).
As discussed above, Judge Pedersen issued such an Order to Show Cause in this
case, and warned that Plaintiff faced dismissal of this action with prejudice if he failed to
respond to the Order. (See Dkt. 46). The factual bases underlying the R&R’s findings
recommending dismissal of Plaintiff’s claims as to Moving Defendants are in all material
respects identical as to Non-moving Defendants. Namely, Plaintiff did not submit a
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proposed discovery plan in accordance with the Court’s Order issued January 13, 2022,
failed to appear for the scheduled hearing on February 9, 2022, has not responded to the
Court’s Order to Show Cause, has repeatedly failed to comply with the Court’s orders, did
not respond to the Moving Defendants’ motion to dismiss, and has taken no affirmative
steps to pursue this matter in more than ten months. (See Dkt. 54 at 5-7); see also Davis,
597 F. App’x at 32 (finding that that an eight-month delay in the plaintiff’s action was
sufficient to warrant dismissal pursuant to Rule 41(b)).
In sum, it appears that Plaintiff has simply abandoned this action. Under these
circumstances, dismissal for failure to prosecute is warranted. See, e.g., Urgiles v. Dep’t
of Corr. of N.Y. State, No. 20-CV-04373 (PMH), 2021 WL 3682238, at *3 (S.D.N.Y. Aug.
19, 2021) (“Where, as here, a plaintiff appears to have abandoned the litigation, dismissal
is appropriate.”) (citing Mena v. City of N.Y., No. 15-CV-3707, 2017 WL 6398728, at *2
(S.D.N.Y. Dec. 14, 2017)). Plaintiff’s continued inaction in this matter and failure to
comply with the Court’s Orders indicates that he has abandoned the litigation both as to
Moving Defendants and Non-moving Defendants. Thus, dismissal with prejudice pursuant
to Rule 41(b) is warranted.

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CONCLUSION
For the foregoing reasons, the Court adopts the R&R (Dkt. 54) in its entirety and
further concludes that Plaintiff’s claims against Non-moving Defendants should be
dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule
of Civil Procedure 41(b) for failure to prosecute. The Clerk of Court is hereby directed to
enter judgment in favor of Defendants and close the case.
SO ORDERED.

________________________________
ELIZABETH A. WOLFORD
Chief Judge
United States District Court
Dated:

November 17, 2022
Rochester, New York

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