15-648-cv
Johnson v. New York City
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 20th day of April, two thousand sixteen.
PRESENT: PIERRE N. LEVAL,
CHRISTOPHER F. DRONEY,
Circuit Judges,
JOHN G. KOELTL,
District Judge.
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BRENDA JOHNSON,
Plaintiff-Appellant,
v. No. 15-648-cv
NEW YORK CITY, ET AL.,
Defendants-Appellees.†
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FOR PLAINTIFF-APPELLANT: BRENDA JOHNSON, pro se, St. Albans,
NY.
FOR DEFENDANTS-APPELLEES: MELANIE T. WEST, of Counsel (Fay Ng,
on the brief), for Zachary W. Carter,
Corporation Counsel of the City of New
York, New York, NY.
The Honorable John G. Koeltl, of the United States District Court of the Southern District of New York,
sitting by designation.
†
The Clerk of Court is directed to amend the caption of this case as set forth above.
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VALERIE FIGUEREDO, Assistant Solicitor
General of Counsel, for Eric T.
Schneiderman, Attorney General of the
State of New York, New York, NY.
Appeal from judgment of the United States District Court for the Eastern District
of New York (Matsumoto, J.; Bloom, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Brenda Johnson, proceeding pro se, appeals the district court’s
judgment sua sponte dismissing her 42 U.S.C. § 1983 complaint for failure to comply
with court orders pursuant to Federal Rules of Civil Procedure 16(f) and 37(b)(2)(A)(v).
We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.
Johnson has waived her right to appellate review by failing to timely object to the
magistrate judge’s report and recommendation. See Small v. Sec’y of Health & Human
Servs., 892 F.2d 15, 16 (2d Cir. 1989). The magistrate judge’s report, which was mailed
to Johnson at the address on file with the district court, clearly indicated that failure to
file a timely objection with the Clerk of the Court could result in waiver of further
judicial review. Johnson nonetheless failed to file any such objections.1 Nor has she
1
Approximately two weeks after the magistrate judge issued her report and recommendation, Johnson
filed two letters with judges not assigned to her case, stating that she had not consented to the referral to
the magistrate judge. These letters did not address the basis for the magistrate judge’s report and were not
filed with the Clerk, and therefore we do not construe them as timely objections to that report. And, in any
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explained her failure to do so on appeal. We therefore consider her right to appellate
review waived.
Even if Johnson had not waived her right to appellate review, we find that the
district court did not abuse its discretion by dismissing Johnson’s complaint. See Agiwal
v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (“We review a district
court’s imposition of sanctions under Rule 37, including dismissal, for abuse of
discretion.”). “All litigants, including pro ses, have an obligation to comply with court
orders, and failure to comply may result in sanctions, including dismissal with prejudice.”
Id. (internal quotation marks, citation, and alteration omitted). To determine whether
dismissal is warranted, a court should consider the willfulness of or reason for
noncompliance, the efficacy of lesser sanctions, the duration of the period of
noncompliance, and whether the noncompliant party had been warned of the
consequences of noncompliance. See id.
Here, Johnson failed to timely appear for two pre-trial conferences—the second of
which had been specifically scheduled for a date that suited Johnson best—without
explanation. In deciding to dismiss Johnson’s complaint, the district court determined
that: (1) Johnson’s noncompliance was willful, since she had been clearly informed of her
obligation to appear; (2) lesser sanctions would have been ineffective, given that Johnson
was afforded multiple opportunities to timely appear; (3) Johnson repeatedly failed to
event, as the magistrate judge explained to Johnson during the pretrial conference of December 10, 2014,
Johnson’s consent was not required because the magistrate judge was assigned to handle only pretrial
matters. See 28 U.S.C. § 636(b); E.D.N.Y. Local Civil Rule 72.
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comply with court orders over a period of months; and (4) Johnson had been warned both
orally and in writing of the consequences of her actions. Because the district court
properly and adequately analyzed Johnson’s actions according to the factors set forth in
Agiwal before dismissing her complaint, and because Johnson fails to defend or explain
her actions on appeal, we conclude there was no abuse of discretion.
We have considered Johnson’s remaining arguments and find that they are without
merit. We therefore AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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