Opinion
18-CV-9463 (GBD) (RWL)
10-20-2020
Kennin Dwayne JACKSON, Plaintiff, v. TSOI #19014, Defendant.
Kennin Dwayne Jackson, Bronx, NY, pro se. Nicolette Pellegrino, New York City Law Department, New York, NY, for Defendant.
Kennin Dwayne Jackson, Bronx, NY, pro se.
Nicolette Pellegrino, New York City Law Department, New York, NY, for Defendant.
ORDER AND REPORT AND RECOMMENDATION FOR DISMISSAL
ROBERT W. LEHRBURGER, United States Magistrate Judge.
Whereas on October 15, 2018, Plaintiff filed this case alleging violation of his rights, while incarcerated, pursuant to 42 U.S.C. § 1983 ; and
Whereas Plaintiff has failed to comply with all discovery obligations, communicate with counsel, and to otherwise prosecute his case; and
Whereas on September 18, 2020, the Court issued an order requiring Plaintiff to show cause why this case should not be dismissed for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, and failure to participate in discovery pursuant to Rule 37 of the Federal Rules of Civil Procedure (the "Order to Show Cause"); and
Whereas the Order to Show Cause required Plaintiff both to submit a written response no later than October 12, 2020, and to appear for a telephonic hearing on October 16, 2020; and
Whereas Plaintiff neither filed a response nor appeared for the show cause hearing; and
For the reasons set forth during the show cause hearing held on October 16, 2020, a transcript of which is attached to this order, the Court:
1. Finds that Plaintiff has failed to participate in discovery, communicate with counsel, respond to the Order to Show Cause, and otherwise prosecute his case; and
2. Recommends that the case be dismissed for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
Procedures for Filing Objections
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 have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable George B. Daniels, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York 10007. FAILURE TO FILE TIMELY OBJECTIONS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW.
Attachment
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In re: JACKSON, KENIN DWAYNE, Plaintiff,
- against
TSOI #19014, Docket #1:18-cv-09463-GBD-RWL
New York, New York
October 16, 2020
TELEPHONE CONFERENCE
PROCEEDINGS BEFORE THE HONORABLE JUDGE ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE
APPEARANCES:
| For Plaintiff: | KENNIN DWAYNE JACKSON, Pro Se |
| 26-63 Heath Avenue, Apt. 10-M | |
| Bronx, NY 10463 | |
| (Of record but not present) | |
| For Defendant: | NEW YORK CITY LAW DEPARTMENT |
| BY: NICOLETTE PELLEGRINO, ESQ. | |
| 100 Church Street | |
| New York, NY 10007 | |
| 212-356-2338 | |
| Transcription Service: | Carole Ludwig, Transcription Services |
|---|---|
| 155 East Fourth Street #3C | |
| New York, New York 10009 | |
| Phone: (212) 420-0771 | |
| Email: Transcription420@aol.com |
Proceedings conducted telephonically and recorded by electronic sound recording;
Transcript produced by transcription service
INDEX
EXAMINATIONS
| Witness | Direct | Cross | Re-Direct | Re-Cross |
|---|---|---|---|---|
| None |
EXHIBITS
| Exhibit Number | Description | ID | In | Voir Dire |
|---|---|---|---|---|
| None |
PROCEEDINGS
HONORABLE ROBERT W. LEHRBURGER (THE COURT): Good afternoon. This is Judge Lehrburger for Jackson versus Tsoi, T-s-o-i, 18civ9463. Would counsel please put in their appearances, starting with the plaintiff, who is, I understand, appearing pro se. Mr. Jackson, are you there? Mr. Jackson?
All right, is counsel on for the defendant?
MS. NICOLETTE PELLEGRINO: Yes, your Honor. Good afternoon. This is Nicolette Pellegrino for Officer Tsoi on behalf of the Office of the Corporation Counsel.
THE COURT: Good afternoon. All right. And have you had any communication with Mr. Jackson as to his appearance for today?
MS. PELLEGRINO: I have not, your Honor.
THE COURT: All right, so we'll give him a little bit, a few minutes, to see if he appears. And if not, we will proceed.
MS. PELLEGRINO: Thank you.
(Silence from 1:06 to 4:16.)
THE COURT: All right, I'm going to begin. It is now 2:05. The plaintiff, Mr. Jackson, has not appeared for this Order to Show Cause Hearing. I do have on the line counsel for the defendant. And I want to set the stage here. As I said, this was an Order to Show Cause Hearing requiring the plaintiff, Mr. Jackson, to appear in order to show cause why the action that he has brought should not be dismissed for failure to prosecute. He has not appeared for that. The Order to Show Cause also required that he submit a written submission and that he do so in advance by October 12th. And there is no such written submission on the record and no indication that Mr. Jackson attempted to make any such submission.
This action has been pending since 2018; and for some time, Mr. Jackson had been keeping the Court apprised of his changes of address. The last such advisory was in January 8th of this year, 2020, when he gave an address for Bronx, New York, and that is the address that is the address of record and has not been changed since. And items that have been mailed to that address have not been returned for Return to Sender or any other reason, as the Court is aware.
There was a stay in place while investigation was going on by the defendants. That stay was lifted on January 30, 2020. A Case Management Plan and Scheduling Order was put in place on June 16, 2020. And since that time, the plaintiff has not responded to discovery requests, document requests and interrogatories provided by counsel or served by counsel for the defendants; and he has not made his own initial disclosures. And the defense counsel has made multiple attempts to communicate with the plaintiff about responding and following through on his discovery obligations and his obligations to prosecute the case.
Defense counsel did advise the plaintiff in written communication that she intended to move for dismissal for failure to prosecute if he did not meet his obligations. Again, no response. And as I noted, there's been no response to this Order to Show Cause.
I note, and it will be posted on the record shortly, that on October 7th this year, my deputy clerk communicated with Mr. Jackson by email advising him of the change of time of today's hearing from ten a.m. to two p.m., and that Mr. Jackson in fact responded at 5:02 p.m. to my deputy, Ms. Shaw, with one word, and that word was "Confirmed." So he confirmed the change in time, so it appears he was evidently clearly aware of today's proceeding and has otherwise not responded to any of the earlier communications, as I mentioned, and we have not heard anything on the court side from Mr. Jackson since his confirmation. Let me ask Ms. Pellegrino, counsel for the defense, is there anything that I have said that needs to be clarified or that you want to add?
MS. PELLEGRINO: No, your Honor. I believe that everything your Honor just recited, in addition to all of the details set forth in the defendant's letters, covers everything.
THE COURT: All right, so in light of the fact that the plaintiff has not shown cause and has not even filed a written submission or appeared for this hearing to even provide any explanation at all, I do find that there is more than good reason for finding a failure to prosecute and a violation of discovery obligations and that this case should be dismissed as a result with prejudice. And I will make such a recommendation to the district judge, Judge Daniel, for him to act on.
Ms. Pellegrino, anything else?
MS. PELLEGRINO: No, your Honor.
THE COURT: All right. With that and nothing else being requested, I wish everyone good health. And we are adjourned. Thank you.
MS. PELLEGRINO: Thank you, your Honor. You, too.
(Whereupon, the matter is adjourned.)
CERTIFICATE
I, Carole Ludwig, certify that the foregoing transcript of proceedings in the case of Jackson v. Tsoi #19014, Docket #18-CV-09463-GBD-RWL, was prepared using digital transcription software and is a true and accurate record of the proceedings.
Signature Carole Ludwig
Carole Ludwig
Date: October 19, 2020.