United States District Court, S.D. New York
ORDER ADOPTING REPORT AND RECOMMENDATION
S. ROMAN, United States District Judge
March 2014, pro se Plaintiff, Glynn Jones
("Plaintiff), commenced this action pursuant to 42 USC
1983, alleging the medical staff at the Fishkill Correctional
Facility were deliberately indifferent to his medical needs.
During the pendency of this action, Plaintiff submitted a
series of change-of-address forms and participated in the
litigation until July 2015 when he stopped communicating with
the court and his adversary's counsel. Following multiple
non-appearances by Plaintiff at court scheduled conferences,
the Honorable Magistrate Judge Paul E. Davison ("MJ
Davison"), issued an Order to Show Cause
("OSC"), dated April 25, 2016, why the instant
action should not be dismissed due to Plaintiffs failure to
prosecute. The OSC further indicated should Plaintiff fail to
respond or demonstrate appropriate grounds for allowing the
action to proceed, MJ Davison will recommend to the district
court judge that the action be dismissed for failure to
prosecute. By Order issued June 8, 206, MJ Davison extended
Plaintiffs time to respond to the OSC until June 24, 2016.
Plaintiffs failure to appear or respond to the OSC, MJ
Davison issued a Report and Recommendation
("R&R"), dated July 6, 2016, pursuant to 28
U.S.C. § 636(b) and Fed. R. Civ. Proc. 72(b),
recommending that the action be dismissed. To date, Plaintiff
has yet to object to the R&R. Upon a careful review of
the procedural history of this action and the R&R, the
Court adopts the R&R, and the complaint is deemed
STANDARDS OF REVIEW
magistrate judge may "hear a pretrial matter [that is]
dispositive of a claim or defense" if so designated by a
district court. Fed.R.Civ.P. 72(b)(1); accord 28
U.S.C. § 636(b)(1)(B). In such a case, the magistrate
judge "must enter a recommended disposition, including,
if appropriate, proposed findings of fact." Fed.R.Civ.P.
72(b)(1); accord 28 U.S.C. § 636(b)(1). Where a
magistrate judge issues a report and recommendation,
[w]ithin fourteen days after being served with a copy, any
party may serve and file written objections to such proposed
findings or recommendations as provided by rules of court. A
judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of 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); accord Fed. R. Civ. P.
72(b)(2), (3). However, *"[t]o accept the report and
recommendation of a magistrate, to which no timely
objection has been made, a district court need only
satisfy itself that there is no clear error on the
face of the record.'" Wilds v. United
ParcelServ., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y.
2003) (emphasis added) (quotingNelson v. Smith, 618
F.Supp. 1186, 1189 (S.D.N.Y. 1985); accordFeehan v.
Feehan, No. 09 Civ. 7016 (DAB), 2011 WL 497776, at *1
(S.D.N.Y. Feb. 10, 2011); see also Fed. R. Civ. P.
72 advisory committee note (1983 Addition, Subdivision (b))
("When no timely objection is filed, the court need only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.").
the R&R was issued on April 25, 2016, and the original
deadline for filing any objections was on or about May 12,
2016. By Order of MJ Davison, Plaintiff was given
approximately forty additional days. Since Petitioner failed
to file any objections, the Court reviews MJ Davison's
R&R for clear error and finds none. A review of the
record reveals the Court made multiple efforts to communicate
with Plaintiff and that Plaintiff failed to respond. The
court's correspondence was forwarded to Plaintiffs last
reported address(es). Similarly, Plaintiff did not respond to
defense counsel's attempted communications. It is well
settled that the court may sua sponte dismiss a case
for lack of prosecution. Link v. Wabash R.R. Co.,
370 U.S. 626, 630 (1962). In determining whether an action
should be involuntarily dismissed for want of prosecution,
the must consider: (1) the duration of plaintiff s failures,
(2) whether plaintiff had received notice that further delays
would result in dismissal, (3) whether defendant is likely to
be prejudiced by further delay, (4) whether district judge
has taken care to strike the balance between alleviating
court calendar congestion and protecting a party's right
to due process and a fair chance to be heard, and (5) whether
the judge has adequately assessed the efficacy of lesser
sanctions. Fed.R.Civ.P. 41(b), 28 U.S.C.A.; LeSane v.
Hall's Sec. Analyst, Inc., 239 F.3d 206 (2d Cir.
2001). Each of the relevant factors previously mentioned were
considered by MJ Davison and all weighed in favor of dismiss.
Plaintiff last participated in the litigation of this action
more than eighteen (18) months ago. Moreover, it is the duty
of all litigants, including pro se plaintiffs, to
inform the Court and their adversary of any change of
address. See, Handlin v. Garvey, 1996 WL 673823, at
*5 (S.D.N.Y.). As determined by MJ Davison, "Plaintiff
has failed to comply with this obligation and indeed appears
to have abandoned this action." R&R, p. 5.
these reasons, the Court adopts MJ Davison's R&R in
its entirety. The action is dismissed in its entirety for
lack of prosecution. The Clerk of Court is directed to close
this case accordingly.
Plaintiff has not made a substantial showing of the denial of
a constitutional right, a certificate of appealability will
not issue. See 28 U.S.C. § 2253(c)(2); Love
v. McCray,413 F.3d 192, 195 (2d Cir. 2005); Lozada
v. United States,107 F.3d 1011, 1017 (2d Cir. 1997),
abrogated on other grounds by United States v.
Perez,129 F.3d 225, 259-60 (2d Cir. 1997). The Court
certifies pursuant to 18 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith, and