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Jefferson v. Webber

United States District Court, E.D. New York

February 24, 2017

KEVIN L. JEFFERSON, Plaintiff,
v.
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.

          For Plaintiff: Kevin L. Jefferson, pro se

          For Defendants: Brian C. Mitchell, Esq.

          MEMORANDUM & ORDER

          JOANNA SEYBERT U.S.D.J.

         Currently 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.

         BACKGROUND

         On 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.)

         Plaintiff 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.)

         On February 18, 2016, Plaintiff appeared at the final pretrial conference. (Feb. Minute Entry, Docket Entry 22.)[1]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.)

         On 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 25.)

         On May 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.

         On May 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.)

         On June 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.

         On June 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 Order.)

         On June 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 ...


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