Opinion
18-CV-7878 (PGG) (RWL)
10-28-2020
ELIJAH IBM BEY, Plaintiff, v. P.O. JOHN NUGENT, et al., Defendants.
REPORT AND RECOMMENDATION
TO HON. PAUL G. GARDEPHE:
FAILURE TO PROSECUTE
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Elijah Ibm Bey (“Bey” or “Plaintiff”) filed this lawsuit against police officers, detectives, and an Assistant District Attorney, pursuant to 42 U.S.C. § 1983, claiming various constitutional violations. (Complaint, Dkt. 2.) For the following reasons, I recommend that this case be dismissed, without prejudice, in its entirety, for failure to prosecute.
On November 14, 2018, the New York City Law Department requested a stay in this case pending the resolution of Plaintiff's related criminal prosecution in New York State court. (Dkt. 17.)
On November 16, 2018, Hon. Paul G. Gardephe granted the requested stay and the Clerk of Court sent a copy of that Order by certified mail to the address on record for Plaintiff. (Dkt. 18.) On January 3, 2019, that copy of the Order was returned to sender as not deliverable.
On November 12, 2019, defense counsel informed the Court that Plaintiff pleaded guilty to Attempted Criminal Possession of a Weapon in the Second Degree and was sentenced to one year in prison in the related New York State criminal prosecution. (Dkt. No. 23.) Accordingly, Judge Gardephe lifted the stay in this case. (Dkt. 24.)
On January 29, 2020, this Court granted an extension of time for Defendants to answer or otherwise respond to Plaintiff's Complaint and mailed a copy of the Order to the address on record for Plaintiff. (Dkt. 29.) On February 11, 2020, that copy of the Order was returned to sender.
On February 4, 2020, Defendant Nelligan filed a motion to dismiss. (Dkt. 30.) On February 24, 2020, this Court directed Plaintiff to respond by March 19, 2020. (Dkt. 36.) On March 26, the Court, nunc pro tunc, extended Plaintiff's deadline to reply to April 15, 2020. (Dkt. 37.) Plaintiff never replied.
Although it is incumbent upon a party to update their address on the Court's docket, on May 18, 2020, the Court instructed Defendants to use reasonable efforts to determine if Plaintiff was incarcerated and to file a letter with the Court indicating whether they had located Plaintiff or were unable to identify Plaintiff's updated address. (Dkt. 38.)
On May 20, 2020, Defendants filed a letter with the Court outlining the reasonable efforts made to determine whether Plaintiff was incarcerated and noting that they were unable to identify Plaintiff's updated address. (Dkt. 39.)
On June 3, 2020, this Court issued its Report and Recommendation on Defendant Nelligan's motion to dismiss, recommending that the motion be granted, instructing the parties to file any written objections within fourteen days, and directing Defendants to serve a copy of the Report and Recommendation on Plaintiff by June 4, 2020. (Dkt. 40.)
On June 4, 2020, Defendant filed an affidavit of service informing the Court that he had served the Report and Recommendation on Plaintiff by sending it to both the physical address and email address on file for Plaintiff. (Dkt. 41.) Plaintiff filed no written objections to the Report and Recommendation.
On August 14, 2020, Judge Gardephe adopted this Court's Report and Recommendation on Defendant Nelligan's motion to dismiss in its entirety and mailed a copy of that Order to the address on file for Plaintiff. (Dkt. 42.) On August 26, 2020, that Order was returned to sender as not deliverable.
The Court issued an Order to Show Cause (“OCS”) on October 14, 2020, requiring Plaintiff to appear at a telephone conference at 2:30 p.m. on Wednesday, October 28, 2020, to show cause why this case should not be dismissed for failure to prosecute. (Dkt. 43.) The Court also invited Plaintiff to file a written submission explaining why this case should not be dismissed for failure to prosecute by Tuesday, October 27, 2020. (Dkt. 43.)
The Court instructed Defendants to serve a copy of the OCS on Plaintiff at his last known physical address and email address and to file proof of service of same by October 15, 2020. (Dkt. 43.) Defendants filed proof of service on October 14 (by mail) and October 15 (by email) to Plaintiff's contact information last identified by Plaintiff and listed on ECF. (Dkts. 44, 45.)
Plaintiff neither appeared at the OSC hearing nor submitted any written response as he was invited to do. Accordingly, I recommend dismissal of the case without prejudice for failure to prosecute. See Fed.R.Civ.P. 41(b); LeSane v. Hall's Security Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (“it is unquestioned that Rule 41(b) ... gives the district court authority to dismiss a plaintiff's case sua sponte for failure to prosecute”); Jackson v. Maronna, No. 18-CV-10148, 2020 WL 5370575, at *2 (S.D.N.Y. Sept. 8, 2020) (Gardephe, J.) (dismissing for failure to prosecute where plaintiff failed to update contact information and participate in prosecution); Adams v. City of New York, No. 17-CV-1465-GHW, 2018 WL 1157976, at *4 (S.D.N.Y. Mar. 2, 2018) (same).
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Paul G. Gardephe, United States Courthouse, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, at United States Courthouse, 500 Pearl Street, New York, New York 10007. FAILURE TO FILE TIMELY OBJECTIONS WILL RESULT IN A WAIVER OF OBJECTIONS AND PRECLUDE APPELLATE REVIEW.
Plaintiff shall affect service of this Report and Recommendation through the same means of service provided for under the OSC.