United States District Court, S.D. New York
L. CARTER, JR., UNITED STATES DISTRICT JUDGE
Geraldo Mena initiated this action on May 13, 2015, alleging
the violation of his civil rights during the time he was
incarcerated at Rikers' Island. ECF No. 1. The procedural
history of this case is recited more extensively in the
Court's November 13, 2017 Order to Show Cause. ECF No.
18. Familiarity with the facts contained in that order is
assumed, and only pertinent facts are restated here.
August 8, 2017, the Court referred the case to Magistrate
Judge Henry B. Pitman. ECF No. 15. After an initial
conference at which Plaintiff did not appear, Magistrate
Judge Pitman issued an order to show cause regarding
Plaintiffs failure to prosecute the case, warning Plaintiff
that a failure to respond before October 26, 2017 would
result in the issuance of a report and recommendation
recommending dismissal of the action. ECF No. 16. This Order
was served on ECF on Plaintiffs former counsel, but,
according to court records, was not mailed to Plaintiff at,
according to Department of Corrections and Community
Supervision records, his current address at Sing Sing
Correctional Facility. After Plaintiff did not respond to the
order to show cause, Magistrate Judge Pitman issued a report
and recommendation on October 30, 2017, recommending
dismissal of the action for failure to prosecute. ECF No. 17.
No objections to the report and recommendation were received
in the 14-day window allotted by statute. Although the docket
entry for the report and recommendation indicates
"Copies Mailed by Chambers, " neither the report
and recommendation nor court records indicate an address
where copies were mailed. As of November 13, 2017, Plaintiffs
former attorney remained as the attorney of record on ECF.
ECF No. 18.
on November 13, 2017, the Court issued an order questioning
whether Plaintiff had received the report and recommendation.
ECF No. 18. As such, the Court requested that the Clerk of
Court update ECF to remove Plaintiffs counsel of record
(reflecting Plaintiff spro se status), and correct
Plaintiffs address to reflect his current residence at Sing
Sing Correctional Facility. Id. The Court further
requested that the Clerk of Court mail a copy of its order,
along with copies of Magistrate Judge Pitman's Order to
Show Cause and Report and Recommendation (ECF Nos. 16 &
17), to Plaintiff at the above-stated address. Id.
Finally, the Court ordered Plaintiff to show cause, by
response in writing, why this action should not be dismissed
for failure to prosecute. Id. Plaintiff was further
requested to confirm his mailing address. Id.
Plaintiff was warned that any failure on his part to make
that showing would result in a dismissal of this case for
failure to prosecute pursuant to Fed.R.Civ.P. 41(b).
of this order and the documents referenced in the order were
mailed to Plaintiff at his address at Sing Sing Correctional
Facility. The facility has not returned the mail as
undeliverable. Based on information from the Department of
Corrections and Community Supervision, Plaintiff remains
incarcerated at Sing Sing as of the date of this order. To
date, Plaintiff has not made any filing in response to the
Court's Order to Show Cause.
light of Plaintiff s ongoing failures to communicate to the
Court his desire to proceed with this litigation, the Court
accepts Magistrate Judge Pitman's report and
recommendation in full and dismisses the case.
receipt of a report and recommendation from a magistrate
judge, a district judge 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). In
addition, the judge may "receive further evidence or
recommit the matter to the magistrate judge with
as here, no timely objection was made to a report and
recommendation, the Court "need only satisfy itself that
there is no clear error on the face of the record" to
adopt the report and recommendation. Figueroa v. Riverbay
Corp., No. 06-cv-5364 (PAC) (KNF), 2006 WL 3804581, at
*1 (S.D.N.Y. Dec. 22, 2006) (quoting Wilds v. United
Parcel Serv., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003)).
Court has discretion to dismiss an action for failure to
prosecute pursuant to Rule 41(b). See Jenkins v. City of
New York, 176 F.R.D. 127, 128-29 (S.D.N.Y. 1997) (citing
Colon v. Mack, 56 F.3d 5, 7 (2d Cir. 1995)). The
Court may do so sua sponte or on a party's
motion. See LeSane v. Hall's Sec. Analyst, Inc.,
239 F.3d 206, 209 (2d Cir. 2001).
the Court is mindful that Plaintiff is now proceeding pro
se, a pro se plaintiff is not exempt from complying with
court orders and must diligently prosecute his case.
Yadav v. Brookhaven Nat. Lab., 487 Fed.Appx. 671,
672 (2d Cir. 2012). Plaintiff received very clear notice that
his failure to respond to the two orders to show
cause would result in dismissal without prejudice. He
nevertheless failed to respond to the Court's orders.
after receiving no objection from Plaintiff to the report and
recommendation, or any other communication from Plaintiff
apprising the Court of his status or desire to proceed with
this litigation, the Court is sufficiently persuaded that
Plaintiff has abandoned this matter. The Court finds no clear
error and adopts the conclusions in Judge Pitman's report
and recommendation in their entirety.
reasons stated above, the Court adopts the report and
recommendation of dismissal of this case. The case is
dismissed for failure to prosecute. The ...