United States District Court, E.D. New York
K. BRODIE, United States District Judge
Traceyann Vassall commenced the above-captioned action on
June 19, 2015 against Defendants the City of New York, Police
Officers Stevie Williamson, Sean Rafferty, Timothy Merrick,
Claudy Milford and Sergeant Edwin Ferreira, alleging that on
March 23, 2014, Defendants falsely arrested and maliciously
prosecuted her in violation of her constitutional rights.
(Compl., Docket Entry No. 1.) On February 23, 2016, Plaintiff
filed an Amended Complaint. (Am. Compl., Docket Entry No.
20.) On October 6, 2016, Defendants moved to dismiss the
Amended Complaint. (Defs. Letter Encl. Mot. to Dismiss
(“Defs. Letter”), Docket Entry No. 41.) Plaintiff
requested and was granted an extension of time to respond to
the motion, and has since not responded or contacted the
Court. (See Pl. Ext. Letter, Docket Entry No. 42;
Order dated Dec. 21, 2016, Docket Entry No. 44.) By Report
and Recommendation dated February 27, 2017 (the
“R&R”), Magistrate Judge Cheryl Pollak
recommended that the Court dismiss Plaintiff's claims for
failure to prosecute. (R&R 4, Docket Entry No. 46.) For
the reasons set forth below, the Court adopts the R&R and
dismisses Plaintiff's claims for failure to prosecute.
6, 2015, attorneys Alexander T. Coleman and Michael J.
Borrelli filed notices of appearance as counsel for Plaintiff
on behalf of the law firm Borrelli & Associates, PLLC.
(Notices of Appearance, Docket Entry Nos. 5, 6.) On May 13,
2016, Borrelli & Associates moved to withdraw as counsel
for Plaintiff, citing irreconcilable conflicts. (Mot. to
Withdraw, Docket Entry No. 24.) Judge Pollak ordered
Plaintiff, her counsel and Defendants' counsel to attend
a conference on the motion, and all parties but Plaintiff
attended. (See Scheduling Order, Docket Entry No.
25; Minute Entry dated May 27, 2016, Docket Entry No. 29.) On
May 27, 2016, Judge Pollak granted counsel's motion to
withdraw and ordered Plaintiff to advise the Court of whether
she intended to continue pursuing her claims pro se
or would seek counsel. (Order, Docket Entry No. 30.) On July
1, 2016, Plaintiff stated that she would proceed pro
se. (Pl. Letter dated July 1, 2016, Docket Entry No.
September 13, 2016, Judge Pollak held a telephone conference
to discuss Defendants' anticipated motion to dismiss the
Amended Complaint. (Minute Entry dated Sept. 14, 2016, Docket
Entry No. 39.) The parties agreed to a briefing schedule.
(Id.) On October 6, 2016, Defendants timely served
their motion papers on Plaintiff. (See Defs.
Letter.) On November 3, 2016, Plaintiff requested an
extension of time to file her responsive papers because of a
medical condition. (Pl. Ext. Letter.) Judge Pollak granted
Plaintiff's application on November 8, 2016, extending
her time to respond until December 5, 2016, and permitting
her to respond by e-mail. (Order dated Nov. 8, 2016
(“November 8 Order”), Docket Entry No. 43.) A
copy of Judge Pollak's November 8 Order was mailed to
Plaintiff on November 8, 2016, at the address she provided to
the Court and to which Judge Pollak had sent prior orders.
November 8 Order was returned and stamped “Return to
Sender.” (See Order dated Dec. 21, 2016
(“December 21 Order”), Docket Entry No. 44.) On
December 21, 2016, Judge Pollak issued an order advising
Plaintiff that “if she continue[d] to refuse to accept
correspondence from the Court or if she ha[d] changed
addresses without notifying the Court, ” her claims
would be dismissed for failure to prosecute. (Id. at
1.) Judge Pollak further directed Plaintiff to contact the
Court by January 30, 2017 and to respond to Defendants'
motion to dismiss. (Id.) Judge Pollak's December
21 Order was mailed and not returned to the Court. Plaintiff
never responded to the December 21 Order and never served or
filed a response to Defendants' motion to dismiss.
February 27, 2017 Judge Pollak issued the R&R
recommending that the Court dismiss Plaintiff's claims
for failure to prosecute unless Plaintiff responded to
Defendants' motion to dismiss and contacted the Court by
March 13, 2017 to indicate that she wished to continue
prosecuting the case. (R&R 4.) On April 5, 2017,
Defendants filed a letter in support of dismissal. (Letter
Mot. to Dismiss, Docket Entry No. 47.) Both the R&R and
Defendants' letter in support of dismissal were mailed to
Plaintiff. (See Docket Entry No. 48.) Plaintiff has
not opposed the R&R.
district court reviewing a magistrate judge's recommended
ruling “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)(1)(C). “[F]ailure
to object timely to a magistrate judge's report may
operate as a waiver of any further judicial review of the
decision, as long as the parties receive clear notice of the
consequences of their failure to object.” Eustache
v. Home Depot U.S.A., Inc., 621 F. App'x 86, 87 (2d
Cir. 2015) (quoting United States v. Male Juvenile,
121 F.3d 34, 38 (2d Cir. 1997)); see also Almonte v.
Suffolk Cty., 531 F. App'x 107, 109 (2d Cir. 2013)
(“As a rule, a party's failure to object to any
purported error or omission in a magistrate judge's
report waives further judicial review of the point.”
(quoting Cephas v. Nash, 328 F.3d 98, 107 (2d Cir.
2003))); Wagner & Wagner, LLP v. Atkinson, Haskins,
Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d
84, 92 (2d Cir. 2010) (“[A] party waives appellate
review of a decision in a magistrate judge's Report and
Recommendation if the party fails to file timely objections
designating the particular issue.” (first citing
Cephas, 328 F.3d at 107; and then citing Mario
v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d
Court has reviewed the unopposed R&R and, finding no
clear error, the Court adopts the R&R in its entirety
pursuant to 28 U.S.C. § 636(b)(1). This action is
dismissed for failure to ...