United States District Court, E.D. New York
January 12, 2015
BILLY HORTON, Plaintiff,
THE CITY OF NEW YORK ET AL, THE NEW YORK CITY POLICE DEPARTMENT, NEW YORK CITY CRIMINAL COURT COUNTY OF QUEENS, NYC LAW DEPARTMENT, CORPORATION COUNSEL OF THE CITY OF NEW YORK, POLICE OFFICER REINALDO ALVAREZ, POLICE OFFICERS JOHN DOES 1-8, ADA HARRY NUSSDORF, ADA DEBORAH WASSEL, Defendants
Billy Horton, Plaintiff, Pro se, Jamaica, NY.
REPORT & RECOMMENDATION
LOIS BLOOM, United States Magistrate Judge.
Pro se Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Plaintiff has failed to appear at two Court-ordered conferences in this case and has not contacted the Court or Defendants' counsel to request an adjournment. When Plaintiff failed to appear at the initial conference on December 10, 2014, I ordered him to show good cause for his absence. He did not respond. Moreover, he failed to appear for the rescheduled conference on January 7, 2015. Accordingly, it is respectfully recommended that Plaintiffs action should be dismissed pursuant to Rules 16(f) and 37(b)(2)(A)(v) of the Federal Rules of Civil Procedure.
Plaintiff commenced this action by paying the fee and filing a complaint on July 11, 2014. (ECF No. 1.) Plaintiff alleges that Defendant officers used excessive force when they entered his house and arrested him, and that certain prosecutors and judges unconstitutionally delayed his criminal case beyond 90 days. (Id.) On the basis of judicial immunity, Plaintiffs claims raised against the named judges were dismissed sua sponte . (ECF No. 4.) Plaintiff served the remaining defendants, (ECF Nos. 10-14), and the City of New York answered, (ECF No. 9).
By Order dated November 12, 2014, the Court scheduled a December 10, 2014 initial pretrial conference pursuant to Federal Civil Procedure Rule 16. (ECF No. 15.) Plaintiff did not appear. Plaintiff did not contact the Court or Defendants' counsel to request an adjournment of the November 12, 2014 conference. Counsel for Defendants timely appeared at the conference and were prepared to proceed.
The Court ordered the parties to appear at a conference on January 7, 2015, and explicitly warned Plaintiff that if he did not timely appear at the conference, I would recommend that his case should be dismissed pursuant to Rules 16(f) and 37(b)(2)(A)(v) of the Federal Rules of Civil Procedure. (ECF No. 19.) Again, Plaintiff did not appear. Plaintiff did not request an adjournment from the Court or from Defendants' counsel for the January 7, 2015 conference.
Rule 16(f) of the Federal Rules of Civil Procedure provides: " [o]n motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney . . . fails to appear at a scheduling or other pretrial conference." Fed.R.Civ.P. 16(f)(1)(A). Under Rule 37(b)(2)(A)(v), the Court may dismiss the complaint for a party's failure to comply with a Court Order. Fed.R.Civ.P. 37(b)(2)(A) (" [T]he court where the action is pending may issue further just orders . . . includ[ing] the following: . . . (v) dismissing the action or proceeding in whole or in part."). The sanction of dismissal " may be imposed even against a plaintiff who is proceeding pro se, so long as warning has been given that noncompliance can result in dismissal." Valentine v. Museum of Modem Art, 29 F.3d 47, 49 (2d Cir. 1994).
Plaintiff has failed to appear at two Court-ordered conferences. When Plaintiff failed to appear for the December 10, 2014 conference, the Court re-scheduled the conference and explicitly warned Plaintiff in writing that I would recommend that his case should be dismissed if he failed to appear at the January 7, 2015 conference. Despite the Court's explicit warning that his case would be dismissed if he failed to appear at the re-scheduled conference, Plaintiff did not appear on January 7, 2015, nor did he contact the Court or Defendants' counsel. The Court does not excuse Plaintiffs failures to appear, and need not afford Plaintiff unlimited opportunities to appear in this action. Defendants have appeared for two conferences and waited for Plaintiff to appear. Apparently, Plaintiff has abandoned this action. No lesser sanction than dismissal is appropriate under these circumstances.
Accordingly, it is respectfully recommended that Plaintiffs action should be dismissed pursuant to Rules 16(f) and 37(b)(2)(A)(v) of the Federal Rules of Civil Procedure.
FILING OF OBJECTIONS TO REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections shall be filed with the Clerk of the Court. Any request for an extension of time to file objections must be made within the fourteen-day period. Failure to file a timely objection to this Report generally waives any further judicial review. Marcella v. Capital Dist. Physicians' Health Plan, Inc., 293 F.3d 42 (2d Cir. 2002); Small v. Sec'y of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989); see Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).