United States District Court, E.D. New York
KEVIN L. JEFFERSON, Plaintiff,
EDWARD WEBBER, Commissioner, SERGEANT RENE GARCIA, POLICE OFFICER CHRISTOPHER VERWYS, POLICE OFFICER MIGUEL VIAS, POLICE OFFICER GLEN DALEO, POLICE OFFICER JESSICA VITALE, and COUNTY OF SUFFOLK, Defendants.
Plaintiff: Kevin L. Jefferson, pro se
Defendants: Brian C. Mitchell, Esq.
MEMORANDUM & ORDER
pending before the Court is Magistrate Judge Arlene R.
Lindsay's Report and Recommendation dated August 10, 2016
(the “R&R”), with respect to defendants
Edward Webber, Sergeant Rene Garcia, Police Officer
Christopher Verwys, Police Officer Miguel Vias, Police
Officer Glen Daleo, Police Officer Jessica Vitale, and the
County of Suffolk's (collectively,
“Defendants”) motions to dismiss for lack of
prosecution, (Docket Entry 34 and 35). Judge Lindsay
recommends that Defendants' motions be granted. (R&R,
Docket Entry 37, at 1.) Plaintiff Kevin L. Jefferson
(“Plaintiff”) has filed objections, which are
presently before the Court. (Pl.'s Obj., Docket Entry
40.) For the reasons set forth below, Plaintiff's
objections are OVERRULED and Judge Lindsay's R&R is
ADOPTED in its entirety.
October 8, 2013, Plaintiff commenced this action asserting
claims pursuant to 42 U.S.C. Section 1983 in connection with
his June 2013 arrest. (See generally Compl.) On May
6, 2015, Judge Lindsay scheduled a final pre-trial conference
for January 26, 2016. (May 2015 Order, Docket Entry 16.)
Judge Lindsay directed the parties to file a joint pretrial
order prior to the conference. (May 2015 Order.)
failed to appear at the January 26, 2016 pretrial conference.
(Jan. Minute Entry, Docket Entry 18.) Judge Lindsay
rescheduled the pretrial conference for February 18, 2016,
and directed Plaintiff to file a submission by February 11,
2016, explaining why this action should not be dismissed.
(Jan. Minute Entry). On February 11, 2016, Plaintiff filed a
letter stating that he failed to appear at the January
pretrial conference because he wrote the date in the
“schedules” application on his cell phone and
lost his cell phone in late December 2015. (Pl.'s Feb.
Ltr., Docket Entry 11, at 1.) Plaintiff indicated that he
planned to appear at the pretrial conference scheduled for
February 18, 2016. (Pl.'s Feb. Ltr. at 2.)
February 18, 2016, Plaintiff appeared at the final pretrial
conference. (Feb. Minute Entry, Docket Entry
22.)Judge Lindsay deemed all discovery to
be complete, extended the deadline to take the first step in
the dispositive motion process to March 21, 2016, and
directed the parties to submit their proposed joint pretrial
order on or before April 22, 2016. (Feb. Minute Entry.) On
March 28, 2016, Defendants served Plaintiff with their Local
Rule 56.1 Statement. (Docket Entry 23.)
April 22, 2016, Defendants filed a letter indicating that
they failed to receive “any information from the
plaintiff regarding what, if anything, he wishes to be
included in the proposed [pretrial] order.” (Defs.'
Apr. Ltr., Docket Entry 24.) Defendants requested that Judge
Lindsay recommend to this Court that this action be
dismissed, or that Plaintiff be precluded from introducing
evidence or witnesses at trial. (Defs.' Apr. Ltr.) On
April 27, 2016, Judge Lindsay issued an Electronic Order
providing Plaintiff with “one final opportunity to
serve defendants with his portion of the joint pretrial order
by May 13, 2016.” Judge Lindsay indicated that
Plaintiff's failure to participate in the pretrial
process would result in a recommendation that this case be
dismissed for failure to prosecute. On April 27, 2016,
Defendants served Plaintiff by mail with a copy of Judge
Lindsay's April 27, 2016 Electronic Order. (Docket Entry
13, 2016, Defendants filed a letter motion to dismiss this
action for failure to prosecute, alleging that Plaintiff
failed to provide any information regarding the pretrial
order. (Defs.' May 2016 Mot., Docket Entry 26.) The
Assistant County Attorney handling this matter, Brian
Mitchell, Esq., indicated that he had had no contact with
Plaintiff, and Plaintiff failed to timely provide his Local
Rule 56.1 Counterstatement by April 29, 2016. (Defs.' May
2016 Mot.) That same day, Plaintiff filed a letter
requesting: (1) an extension of time to file his portion of
the joint pretrial order and to “respond to the
defendants' motion for summary judgment, ” and (2)
that discovery be reopened. (Pl.'s May 2016 Ltr., Docket
Entry 28.) However, Plaintiff's letter was not docketed
until May 17, 2016.
24, 2016, Judge Lindsay denied Defendants' motion to
dismiss for failure to prosecute but directed Plaintiff to
reimburse Defendants for their reasonable expenses incurred
in filing their motion. (May 2016 Order, Docket Entry 29.)
Judge Lindsay provided Plaintiff with a final opportunity to
provide his portion of the pretrial order to Defendants by
June 3, 2016, and noted that “[a]s is his pattern,
[Plaintiff] waited until the defendants filed the instant
motion to seek an extension of time to submit his portion of
the pretrial order and his Rule 56.1 Counterstatement.”
(May 2016 Order at 3.) Judge Lindsay declined to grant
additional extensions and indicated that she would recommend
that this action be dismissed if Plaintiff failed to comply
or failed to reimburse Defendants for their costs. (May 2016
Order at 3.)
3, 2016, Defendants filed a letter motion requesting: (1)
attorneys' fees totaling $300 in connection with Judge
Lindsay's May 23, 2016, Order, and (2) that this action
be dismissed based on Plaintiff's failure to provide
information regarding the pretrial order. (Defs.' Jun.
2016 Ltr., Docket Entry 30.) That same day, Defendants filed
an additional letter indicating that Plaintiff called Mr.
Mitchell's office at approximately 3:15 p.m. and advised
his secretary that he would be filing the pretrial order that
day and mailing Defendants a copy the following day.
(Defs.' Sec. Jun. 2016 Ltr., Docket Entry 31.) Defendants
renewed their request for dismissal of this action based on
Plaintiff's repeated failure to comply with judicial
directives. (Defs.' Sec. Jun. 2016 Ltr.) Plaintiff filed
his portion of the joint pretrial order on June 3, 2016.
(Docket Entry 32.) To date, Plaintiff has not filed proof of
service of the joint pretrial order.
7, 2016, Judge Lindsay denied Defendants' letter motion
to dismiss for failure to prosecute with leave to renew if
they failed to receive Plaintiff's portion of the joint
pretrial order by June 10, 2016. (Jun. 2016 Order, Docket
Entry 33, at 2.) Judge Lindsay also found Defendants'
requested fee award to be reasonable and directed Plaintiff
to remit $300 to Defendants on or before July 1, 2016. (Jun.
2016 Order.) Judge Lindsay further stated that
“[P]laintiff is warned that his failure to [remit $300
to Defendants] may result in a recommendation that the case
be dismissed for failure to prosecute.” (Jun. 2016
18, 2016, Defendants renewed their request for dismissal,
alleging that Plaintiff failed to serve his portion of the
pretrial order. (Defs.' Third Jun. 2016 Ltr., Docket
Entry 34.) On July 17, 2016, Defendants filed an additional
motion to dismiss, contending that Plaintiff failed to remit
the $300 sanctions and still had not served his portion of
the pretrial order. (Defs.' Fourth ...