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Watkins v. Marchese

United States District Court, S.D. New York

July 31, 2015

CAPTAIN MARCHESE, et al., Defendants.


GEORGE B. DANIELS, District Judge.

Pro se Plaintiff Dennis Watkins brings this action under 42 U.S.C. § 1983 and state law against the following members of the New York City Department of Correction: Captain Merchese, Captain Kurtaj, Correction Officer Thompson, Correction Officer Davis, and Doctor Eugenio Mateo (collectively, the "Defendants"). Plaintiff alleges the Defendants engaged in the use of excessive force and denied him medical care. (Compl. at 3, ECF No. 2.) The Defendants move to dismiss the Plaintiff's complaint under Federal Rule of Civil Procedure 41(b) for failure to prosecute. (ECF No. 90.) Before this Court is Magistrate Judge Sarah Netburn's June 17, 2015 Report and Recommendation ("Report"), in which she recommended that this Court grant the Defendants' motion to dismiss. (ECF No. 114.) Magistrate Judge Netburn's recommendation to dismiss this case is adopted. The Defendants' motion to dismiss for failure to prosecute is hereby GRANTED.


Plaintiff was incarcerated at the Manhattan Detention Center during the incident at issue. Plaintiff claims that, on or about July 16, 2012, Defendants Merchese, Kurtaj, Davis and Thompson beat him after he suffered a seizure and left him in a bus that was over 100 degrees Fahrenheit. Plaintiff also alleges that Defendant Mateo endangered his life by allowing the officers to move him to the bus following the seizure, despite Defendant Mateo's alleged awareness of Plaintiffs history of heat stroke, seizures and asthma. ( See Report at 2); ( see also Transcript of October 6, 2013 Conference at 16:15-19:12, ECF No. 34.) The instant action was filed to redress Plaintiffs claimed injuries.

In prosecuting this case, Plaintiff has refused to comply with two sets of court orders: (1) orders to execute medical releases; and (2) orders to be deposed under oath. ( See Report at 15.) First, Plaintiff ignored repeated court orders to complete the requisite medical releases.[1] ( Id. at 3-8.) Second, during his September 9, 2014 deposition, Plaintiff refused to answer any further questions until certain demands were met, despite two phone calls to Magistrate Judge Netburn's chambers and her verbal orders to complete the deposition. ( Id. at 9-10.)

On October 17, 2014, the Defendants filed the instant motion to dismiss. ( See ECF No. 90; Mem. in Support of MTD, ECF No. 92.) In opposition, Plaintiff argues that (i) any delay in prosecuting his case was due to his incarceration and inability to obtain the services of a notary, and (ii) his refusal to answer questions at his deposition was due to illness or trauma. ( See Opp'n, ECF No. 98.) Defendants respond that Plaintiff's refusal to sign the medical releases under his proper name delayed this case, and that the record reflects the failure to complete the deposition was due to an ongoing "pattern of obstinate obstruction, " not illness or trauma. ( See Reply at 2-4, ECF No. 105.)[2]

Due to the large volume of Plaintiff's filings in this litigation (and other actions in this district), Magistrate Judge Netburn issued on order on November 7, 2014 stating that, "unless there is an absolute emergency... an appropriate order responding to letters filed in this case" would issue "at the beginning of every month." (ECF No. 97.)


This Court may accept, reject, or modify, in whole or in part, the findings set forth in the Report. 28 U.S.C. § 636(b)(1)(C). When there are objections to the Report, the Court must make a de nova determination of those portions of the Report to which objections are made. Id.; see also Rivera v. Barnhart, 423 F.Supp.2d 271, 273 (S.D.N.Y. 2006). The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(C). The Court need not conduct a de nova hearing on the matter. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980). Rather, it is sufficient that the Court "arrive at its own, independent conclusion" regarding those portions of the Report to which objections were made. Nelson v. Smith, 618 F.Supp. 1186, 1189-90 (S.D.N.Y. 1985) (quoting Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983)). When no party files objections to a Report, the Court may adopt the Report if "there is no clear error on the face of the record." Adee Motor Cars, LLC v. Amato, 388 F.Supp.2d 250, 253 (S.D.N.Y. 2005) (quotation omitted).

Magistrate Judge Netburn advised the parties that failure to file timely objections to the Report would constitute a waiver of those objections on appeal. (Report at 27); see also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). No party objected to the Report. As there is no clear error on the face of the record, this Court adopts the Report's recommendation to dismiss this case.


"The primary rationale underlying a dismissal under [Rule] 41 (b) is the failure of [a] plaintiff in his duty to process his case diligently." Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). This obligation "is imposed because of the strong policy favoring prompt disposition of cases." Id. Rule 41(b) authorizes the district court to dismiss an action "[i]f the plaintiff fails to prosecute or to comply with... a court order." Fed.R.Civ.P. 41 (b). "The fact that [a] plaintiff is incarcerated does not absolve him of the responsibility to prosecute his lawsuit in a diligent manner." Norfleet v. City of New York, 12 Civ. 4637(ER), 2015 WL 765948, at *4 (S.D.N.Y. Apr. 7, 2014) (quotation omitted).

In Baptiste v. Sommers, the Second Circuit held that district courts must weigh five factors when deciding whether to dismiss an action under Rule 41 (b): "(1) the duration of the plaintiff's failure to comply with the court order, (2) whether plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are likely to be prejudiced by further delay in the proceedings, (4) a balancing of the court's interest in managing its docket with plaintiff's interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal." 768 F.3d 212, 216 (2d Cir. 2014) (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)). No single factor is dispositive in this inquiry. Id. The court need not make "exhaustive factual findings, " but should support its decision with adequate reasoning. See id. at 217. Even where a plaintiff fails to comply with a court ...

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