Shapiro v. Darel, et al, No. 1:2017cv00376 - Document 65 (W.D.N.Y. 2023)
Court Description: DECISION AND ORDER: For the reasons set forth in the Report, Recommendation and Order, plaintiff's lawsuit is dismissed for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The Clerk of Court shall take all s teps necessary to close the case. A copy of the Decision and Order and this entry have been mailed to Robert L. Shapiro, 154-71 Brookville Blvd., Rosedale, NY 11422. SO ORDERED. Signed by Hon. Richard J. Arcara on 8/28/2023. (LAS)This was mailed to: Robert Shapiro.Clerk to Follow up
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Shapiro v. Darel, et al Doc. 65 Case 1:17-cv-00376-RJA-HKS Document 65 Filed 08/28/23 Page 1 of 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ______________________________________ ROBERT SHAPIRO, Plaintiff, DECISION AND ORDER 17-CV-376-A v. DANIEL J. DAREL, Defendant. ______________________________________ In this prisoner civil rights action commenced pro se by Plaintiff Robert Shapiro, a former inmate who was in the custody of the New York State Department of Corrections and Community Supervision at the time his claims arose, Plaintiff’s Complaint alleges claims pursuant to 42 U.S.C. § 1983. After originally being referred to Magistrate Judge Hugh B. Scott pursuant to 28 U.S.C. § 636(b)(1) for the performance of pretrial proceedings, the case was reassigned to Magistrate Judge H. Kenneth Schroeder, Jr. Dkts. 27 & 56. On August 4, 2023, Magistrate Judge Schroeder issued a Report, Recommendation and Order (“RR&O”) recommending that Plaintiff’s case be dismissed for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Dkt. 64. Federal Rule of Civil Procedure 72(b)(3) provides, “[t]he district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” Here, no objections to the RR&O have been filed. “When no timely objection is filed, the [C]ourt need only satisfy itself that there is no clear error 1 Dockets.Justia.com Case 1:17-cv-00376-RJA-HKS Document 65 Filed 08/28/23 Page 2 of 3 on the face of the record in order to accept the recommendation.” 1983 Advisory Committee Note to Fed. R. Civ. P. 72(b); see Patton v. Ford Motor Co., 14-CV-0308RJA-HBS, 2017 WL 2177621, 2017 U.S. Dist. LEXIS 76148, *5 (W.D.N.Y. May 18, 2017). The Court finds no error with respect to Magistrate Judge Schroeder’s recommendation, and hereby adopts the RR&O in its entirety. The Court further finds that although Rule 41(b) does not explicitly address sua sponte dismissal for failure to prosecute, it is well settled that a district court may, “based on both its inherent authority and Rule 41(b) – dismiss an action sua sponte for failure to prosecute or failure to comply with a court order.” Hall v. Oriska Corp Gen. Contr., 2022 U.S. App. LEXIS 33520, *5 (2d Cir. 2022). As such, it is hereby ORDERED that, for the reasons set forth in the RR&O and above, Plaintiff’s lawsuit is dismissed for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The Clerk of the Court shall take all steps necessary to close the case. IT IS SO ORDERED. __s/Richard J. Arcara________ HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT COURT Dated: August 28, 2023 Buffalo, New York 2 Case 1:17-cv-00376-RJA-HKS Document 65 Filed 08/28/23 Page 3 of 3 3
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