Barker v. New York State Department of Corrections et al, No. 7:2016cv00076 - Document 58 (S.D.N.Y. 2018)
Court Description: ORDER AND OPINION for 57 Report and Recommendations. This Court agrees. Having found no clear error, the Court adopts the R & R, and the complaint is dismissed for failure to prosecute. For the reasons stated above, the Court adopts MJ Davis on's R & R in its entirety. Plaintiff's complaint is dismissed. The Clerk of Court is directed to terminate the case, to mail a copy of this Opinion to Plaintiff, and to show proof of service on the docket. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 5/24/2018) (rj)
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Barker v. New York State Department of Corrections et al Doc. 58 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MARC BARKER, Plaintiff, 16-cv-0076 (NSR)(PED) -againstORDER AND OPINION DSR B. SMITH, Defendant. NELSON S. ROMAN, United States District Judge: Plaintiff Marc Baker ("Plaintiff') commenced this action, pursuant to 42 U.S.C. § 1983 against four named individuals employed at Downstate Correctional Facility ("Downstate"). Plaintiff alleges he was falsely accused of an assault which led to being placed in the Security Housing Unit ("SHU'), colloquially referred to as solitary confinement, for a period of one hundred and twenty (120) days. Following motion practice, the Comt referred this matter to Magistrate Judge Paul E. Davidson ("MJ Davison") for general pretrial supervision (Order of Reference, Docket No. 30.) Now before the Comt is MJ Davison's Report and Recommendation ("R & R") recommending that Plaintiffs remaining claims be dismissed for want of prosecution. (See Docket No. 57.) For the following reasons, the Court adopts MJ Davison's R & R in its entirety, and Plaintiffs complaint is DISMISSED. PROCEDURAL BACKGROUND The relevant procedural background is set forth the R & R. In substance, Plaintiff has failed to respond to discovery requests and to make himself available for deposition despite multiple court orders. In addition, Plaintiff refused or failed to appear (telephonically) at several scheduled , •.c:.~"-- U.SDC court_~,9_rµt:rences. Notably, by Order dated March 14, 2018, the cou1t info1med Plaintiff that his snr;y- ~- -- - -- -"'- 1·,; IDOCUMENT I/ ELECTRO?~ICALLY FILED. I DOC#: _ _~ - - . - - - / , · -,)!,f"' -:,L,-D·, c ·' _;I ,_.. u I --'~ ~"-'<..:fQ I J. s/.,~., _, 122.c:~c=-,--_-:-- 1~ .--11 l Dockets.Justia.com failure to attend his deposition may result in severe sanctions, including dismissal of the action for failure to prosecute. (Docket No. 50.) STANDARD OF REVIEW A magistrate judge may "hear a pretrial matter dispositive of a claim or defense" if so designated by a district coU1t. See Fed. R. Civ. P. 72(b)(l); accord28 U.S.C. § 636(b)(l)(B). In such a case, the magistrate judge "must enter a recommended disposition, including, if appropriate, proposed findings of fact." Fed. R. Civ. P. 72(b)(l); accord 28 U.S.C. § 636(b)(l). Where a magistrate judge issues a report and recommendation, [w]ithin fourteen days after being se1ved with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those p01tions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in pait, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(l); accord Fed. R. Civ. P. 72(b)(2), (3). However, "[t]o accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003) (quoting Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)); accord Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008) ("[F]ailure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision.") (quoting Small v. Sec. of HHS, 892 F.2d 15, 16 (2d Cir. 1989)); see also Fed. R. Civ. P. 72 advisory committee note (1983 Addition, Subdivision (b)) ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation."). To the extent a party makes specific objections to an R & R, those paits must be reviewed de nova. 28 U.S.C. 636(b)(l); Fed. R. Civ. P. 72(b); United States v. Male Juvenile, 121 F.3d 34, 2 38 (2d Cir. 1997). In a de nova review, a district court must consider the "[r]eport, the record, applicable legal authorities, along with Plaintiffs and Defendant's objections and replies." Diaz v. Girdich, No. 04-cv-5061, 2007 U.S. Dist. LEXIS 4592, at *2 (S.D.N.Y. Jan. 23, 2007) (internal quotation marks omitted). But to the extent "a petition makes only general and conclusory objections ... or simply reiterates the original arguments, the district court will review the report and recommendations strictly for clear etrnr." Harris v. Burge, No. 04-cv-5066, 2008 U.S. Dist. LEXIS 22981, at *18 (S.D.N.Y. Mar. 25, 2008). The distinction turns on the whether a litigant's claims are "clearly aimed at particular findings in the magistrate's proposal" or are a means to take a "'second bite at the apple' by simply relitigating a prior argument." Singleton v. Davis, No. 03cv-1446, 2007 U.S. Dist. LEXIS 3958, at *2 (S.D.N.Y. Jan. 18, 2007) (citation omitted). DISCUSSION Defendant did not timely object to the R & R. Thus, the Court reviews the R & R for clear etTor. In recommending dismissal of Plaintiffs complaint for failure to prosecute, MJ Davison weighed the five factors enumerated in FRCP 41(b). Baptiste v. Sommers, 768 F.3d 212,216 (2d Cir. 2014). Although the court also weighed Plaintiffs prose status, it nonetheless determined, inter alia, that Plaintiffs pattern of noncompliance with coutt-ordered discovery was willful and intended to delay. The court further determined that Plaintiffs failure to appear or make himself available for deposition prejudiced Defendants' ability to "adequately prepare for trial." This Court agrees. Having found no clear error, the Court adopts the R & R, and the complaint is dismissed for failure to prosecute. 3 CONCLUSION For the reasons stated above, the Court adopts MJ Davison's R & R in its entirety. Plaintiff's complaint is dismissed. The Clerk of Comt is directed to terminate the case, to mail a copy of this Opinion to Plaintiff, and to show proof of service on the docket. Dated: May 24, 2018 White Plains, New York SO ORDERED: 4
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