The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff George Chavis, a New York State prison inmate, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983, against nineteen correctional officials employed by the New York State Department of Correctional Services. Generally, in his Complaint, Plaintiff alleges that Defendants violated his rights under the First, Eighth and Fourteenth Amendments when he was incarcerated at Upstate Correctional Facility between approximately July 28, 2002, and January 20, 2005. (Dkt. No. 1, ¶¶ 6-7 [Plf.'s Compl.].) Currently before the Court is a Report-Recommendation that the Court grant Defendants' motion to dismiss Plaintiff's Complaint for failure to comply with several Orders of the Court and for failure to prosecute the action. For the reasons set forth below, the Courts adopts the Report-Recommendation in its entirety.
On November 2, 2007, Defendants moved to dismiss Plaintiff's Complaint for failure to comply with several Court orders and for failure to prosecute the action, pursuant to Fed. R. Civ. P. 41(b), 37(b), and 37(d). (Dkt. No. 67.) The motion was referred to Magistrate Judge David R. Homer for a Report-Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). On July 21, 2008, Magistrate Judge Homer issued a Report-Recommendation that weighed the five factors governing a decision on a motion to dismiss under Fed. R. Civ. P. 41(b), and concluded that the Court should grant Defendants' motion. (Dkt. No. 77.) On August 4, 2008, Plaintiff filed an Objection to the Report-Recommendation. (Dkt. No. 78.) On August 11, 2008, Defendants filed a Response to Plaintiff's Objection. (Dkt. No. 79.) On August 20, 2008, Plaintiff filed a Reply to Defendants' Response. (Dkt. No. 80.)
When specific objections to a magistrate judge's Report-Recommendation are made, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). On de novo review, "[t]he judge may . . . receive further evidence . . . ." 28 U.S.C. § 636(b)(1)(C). However, a district court will ordinarily refuse to consider arguments, case law and/or evidentiary material that could have been, but was not, presented to the Magistrate Judge in the first instance. See, e.g., Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994); Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990); Alexander v. Evans, 88-CV-5309, 1993 WL 427409, at *18, n.8 (S.D.N.Y. Sept. 30, 1993).
When only general objections are made (or the party merely reiterates his original allegations or arguments), the Court reviews for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999); Vargas v. Keane, 93-CV-7852, 1994 WL 693885, at *1 (S.D.N.Y. Dec. 12, 1994) (Mukasey, J.), aff'd, 86 F.3d 1273 (2d Cir.), cert. denied, 519 U.S. 895 (1996). Similarly, when a party makes no objection to a portion of a Report-Recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted].
After conducing the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).
A. Grounds for Dismissal Identified in Report-Recommendation
After carefully examining the record in this action de novo--including Magistrate Judge Homer's Report-Recommendation, Plaintiff's Objection thereto, and the parties' subsequently filed papers--the Court adopts the Report-Recommendation in its entirety for the reasons stated therein and dismisses Plaintiff's Complaint.
Generally, Plaintiff's objections attempt to raise a handful of factual disputes about why he refused to participate in the depositions in question, not whether he refused to participate in those depositions after being Ordered to do so by the Court. (Dkt. No. 78, 80.) For the sake of brevity, the Court will set aside the fact that (1) generally Plaintiff's objections merely reiterate his original allegations or arguments before Magistrate Judge Homer, (2) some of his objections attempt to submit new evidence on appeal without showing cause for the granting of permission to do so, (3) his reply papers were submitted past the deadline for filing objections, and (4) he has used abusive language in his submissions.*fn1 What is more important is that the disputes of fact that Plaintiff attempts to raise are of little, if any, materiality to the five factors to be considered by a district court when deciding whether or not to grant a motion to dismiss under Fed. R. Civ. P. 41(b).*fn2 This is because the justifications that Plaintiff proffers for his refusals to be deposed (e.g., not having his paperwork with him to refer to before answering questions) are not adequate, especially in light of (1) Magistrate Judge's Order of August 9, 2007, specifically addressing that issue (Dkt. No. 63), and (2) the accommodations made by defense counsel during the depositions. As a result, the disputes of fact that Plaintiff attempts to raise do not tilt the scales against dismissal. To the contrary, the scales remain balanced decidedly in favor of dismissal. The Court would add only two points to Magistrate Judge Homer's thorough weighing of the relevant five factors in his Report-Recommendation.
With regard to the first factor, the duration of Plaintiff's failures is, at the very least, some nine (9) months, having begun when he first refused to be deposed on January 19, 2007, and having continued until he refused to be deposed for the third time on October 16, 2007. (The Court says "at the very least" because, arguably, Plaintiff's failures have continued through the date of this Memorandum-Decision and Order.) In any event, even considering the shorter time period of nine months, generally, durations of such a length in time are sufficient to weigh in favor of dismissal.*fn3
With regard to the third factor, the prejudice is exacerbated by the age of the case and number of events giving rise to Plaintiff's claims. Under the circumstances, a further delay may well affect witnesses' memories, the ability to locate witnesses (who might retire from, or be transferred within, the New York ...