O'Neal v. Ewald

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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BRONTIE O'NEAL,

Plaintiff, MEMORANDUM &

ORDER

CV 16-4318 (GRB)(ARL)

-against-

WARDEN CHARLES EWALD, et al.,

Defendants.

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GARY R. BROWN, United States District Judge:

Pro se plaintiff Brontie O’Neal, a frequent litigant in this Court, brings this action against

the warden of the facility in which he is or was housed, along with a doctor and nurse employed

therein, claiming that he was attacked by fellow inmates after guards advised them that he was

convicted of beating an 83-year old woman1 and were subsequently indifferent to his medical

needs. Presently before the Court is the Report and Recommendation dated August 18, 2021 of

Judge Arlene R. Lindsay, Docket Entry (“DE”) 180, in connection with the renewed motion by

defendants to dismiss under Fed. R. Civ. P. 41 based upon plaintiff’s failure to prosecute this case

diligently and repeated and persistent non-compliance with Court Orders in this matter, DE 179.

The Court has carefully reviewed the thorough report by Magistrate Judge Lindsay, which

recommends a preclusion sanction, as well as the record of the case. While the Court readily

adopts the factual findings by Judge Lindsay as well as the conclusion that a sanction is warranted,

1 In a remarkable, though irrelevant, turn, an unrepentant O’Neal filed claims against the 83-year old victim whom

he admitted assaulting under oath. See O'Neal v. E. Hampton Town, No. 16-0570 (JFB)(GRB), 2017 WL 4174788,

at *7 (E.D.N.Y. 2017), adopted sub nom. O'Neal v. Spota, 2017 WL 4162307 (E.D.N.Y. 2017), aff'd, 744 F. App'x

35 (2d Cir. 2018).

the Court differs as to the appropriate sanction to be employed. As such, the Report and

Recommendation is adopted in part, and the case is dismissed for failure to prosecute and willful

noncompliance with Court orders.

Standard of Review

In reviewing a Report and Recommendation (“R&R”), the district court “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). In absence of objections, the Court may adopt a report and

recommendation without de novo review. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does

not appear that Congress intended to require district court review of a magistrate’s factual or legal

conclusions, under a de novo or any other standard, when neither party objects to those findings.”);

see also Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Where parties receive

clear notice of the consequences, failure timely to object to a magistrate’s report and

recommendation operates as a waiver of further judicial review of the magistrate’s decision.”); cf.

28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(3) (requiring de novo review after objections).

However, because the failure to file timely objections is not jurisdictional, a district judge may still

excuse the failure to object in a timely manner and exercise its discretion to decide the case on the

merits to, for example, prevent plain error. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003)

(“[B]ecause the waiver rule is non jurisdictional, we ‘may excuse the default in the interests of

justice’”) (quoting Thomas, 474 U.S. at 155)).

Although plaintiff has waived any objection to the R&R and thus de novo review is not

required, the Court has conducted a de novo review of the R&R in an abundance of caution.

Having conducted a review of the full record and the applicable law, and having reviewed the

R&R de novo, the Court adopts the factual and procedural findings in the thorough R&R in their

entirety. Furthermore, the Court accepts the recommendation that sanctions are warranted. The

nature of those sanctions, though, require further consideration.

Discussion

Plaintiff’s Prodigious Litigation Background

This is far from Mr. O’Neal’s first experience with federal litigation; indeed, he has vast

experience litigating his own cases and having cases dismissed for failure to comply with rules

and court directives. His unremitting filing of pro se claims has resulted in a weighty, disquieting

catalog of published decisions. See, e.g., O'Neal v. Spota, 744 F. App'x 35, 36–37 (2d Cir. 2018);

O'Neal v. New York, 465 F. Supp. 3d 206 (E.D.N.Y. 2020) (habeas petition which included claims

for tort damages); O'Neal v. McGuire, No, 18-CV-5506 (JFB)(GRB), 2019 WL 2013775

(E.D.N.Y. May 6, 2019); O'Neal v. Spota, No. 16-CV-579 (JFB)(GRB), 2017 WL 118044

(E.D.N.Y. Jan. 12, 2017); O'Neal, 2017 WL 4174788, at *1. Remarkably, and in seeming

contravention of law, his advocacy has extended beyond his own claims; though he is not, to this

Court’s knowledge, an attorney, O’Neal has purportedly “represented” other pro se litigants.

Beckman v. James Pena Ayan Grp., Inc., No. 21-CV-4374 (JS)(AKT), 2021 WL 3709234, at *1

(E.D.N.Y. Aug. 20, 2021) (observing that pleadings bore the caption “Represented by Brontie

O'Neal”); Malone v. Byrns, 18-CV-6164 (JMA)(ARL), 2019 WL 1471088 (E.D.N.Y. Apr. 3,

2019) (describing involvement in preparing pro se status report by O’Neal, a frequent litigator in

this Court”). O’Neal had an appeal dismissed by the Second Circuit Court of Appeal, which ruled:

O'Neal’s brief does not challenge the substance of the district court's January 12,

2017 dismissal of his claims against the county defendants or its September 19,

2017 order adopting the magistrate judge's recommendation to dismiss O'Neal’s

claims against the town and individual defendants. Nor does his brief identify any

issues on appeal, set forth coherent arguments, or cite the record or legal authority,

as required under Rule 28. Despite the “latitude” we afford pro se litigants,

O'Neal’s failure to comply with Rule 28 is fatal to his appeal.

Additionally, O'Neal waived his right to judicial review of the magistrate judge's

report and recommendation (“R & R”) by failing to timely object. This rule applies

to pro se litigants if the magistrate judge expressly warns a pro se litigant that a

failure to timely object will waive further judicial review and cites relevant

statutory and civil rules authority. Because O'Neal did not object to the magistrate

judge's R&R recommending dismissal of his claims against the town and individual

defendants despite having received an express warning about the consequences of

his failure to do so, these claims are waived.

O'Neal v. Spota, 744 F. App'x 35, 36–37 (2d Cir. 2018) (alterations omitted). In 2019, then-District

Judge Joseph Bianco denied O’Neal’s motion for in forma pauperis status under the “three-strikes”

provision of 28 U.S.C. §1915(g), noting that plaintiff “has at least four disqualifying actions” and

commenting upon “plaintiff's history of vexatious litigation.” O'Neal v. McGuire, 2019 WL

2013775, at *2 (E.D.N.Y. 2019). O’Neal has, in still other cases, been frequently warned of the

consequences of non-compliance. See, e.g. O'Neal v. Spota, 2017 WL 118044 (E.D.N.Y. 2017)

(“If plaintiff again fails to plead sufficient facts in his amended complaint, or if he fails to file an

amended complaint within thirty (30) days, he will not have another opportunity to re-plead, and

the Court will enter judgment”).

All of this history proves relevant in determining the proper disposition of the instant

action.

Conduct in the Instant Action

The detailed recitation of O’Neal’s conduct – and misconduct – in this case set forth in

Judge Lindsay’s Report and Recommendation (familiarity with which is assumed) is incorporated

by reference herein. Judge Lindsay describes the litany of non-compliance by O’Neal, as well as

the Herculean -- if ultimately fruitless -- efforts by judges of this Court, as well as defendants’

counsel, to obtain cooperation from O’Neal in the reasoned litigation of this matter. Paradoxically,

O’Neal seemed disinclined to comply with deadlines and direction, yet would regularly barrage

the Court and adversaries with motions and applications that were entirely inappropriate, irrelevant

and immaterial. Indeed, for nearly two years, the Court and counsel have unsuccessfully

endeavored to obtain his participation in submitting a pre-trial order, such that the matter could be

set down for trial, which gives rise to the instant motion. DE 179. As Judge Lindsay notes,

plaintiff was repeatedly “warned that failure to comply with the order could result in a

recommendation of sanctions, including, but not limited to, a recommendation that the case be

dismissed with prejudice for failure to prosecute and to comply with court orders pursuant to Fed.

R. Civ. P. 37 and 41.” DE 180 at 4. Notwithstanding many failures, Judge Lindsay repeatedly

granted O’Neal extensions, always careful to repeat the admonishments concerning potential

consequences. Id. The warnings had little effect.

Judge Lindsay summarized plaintiff’s egregious conduct and the very real impact of this

conduct on the Court and the defendants:

In this case, O’Neal has been cautioned numerous times that if he failed to respond

to the Court’s orders, he would run the risk of the undersigned recommending that

his case be dismissed. O’Neal has disregarded the Court’s clear instructions with

respect to the joint pretrial order and has instead filed documents of his own

choosing. While the Court has attempted to foster completion of a pretrial order

that complies with the District Judge’s individual rules for years, the Court has not

succeeded due to O’Neal’s willful noncompliance. Nonetheless, the defendants

will be substantially prejudiced should this case remain open, to say nothing

of the need to alleviate court congestion where the plaintiff has been

nonresponsive.

Id. at 7 (emphasis added). Judge Lindsay properly concludes that O’Neal’s conduct warrants the

imposition of sanctions, and that the sanction of dismissal under Rules 37 and 41, under the

standards articulated by the Second Circuit, would not be inappropriate. Id. (citing Ruzsa v.

Rubenstein & Sendy Attys at Law, 520 F.3d 176, 177 (2d Cir. 2008)) and Nieves v. City of New

York, 208 F.R.D. 531, 535 (S.D.N.Y.2002) (citing Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d

849 (2d Cir.1995)).

Rather than dismissal, which she correctly notes should be reserved for “extreme

circumstances,” id. (citing Salahuddin v. Harris, 782 F.2d 1127, 1132 (2d Cir. 1986)), Judge

Lindsay recommends preclusion of evidence. Specifically, she recommends that the case be

allowed to proceed to trial, but that O’Neal not be allowed to submit any exhibits (other than those

identified by defendants) and only be permitted to call two witnesses identified in DE 170.2

However, Judge Lindsay’s largesse discounts two factors. The first is plaintiff’s extensive

history of frivolous litigation.3 While misdeeds in other cases are not a basis for dismissal here,

the numerous warnings and notice he has received concerning the potential consequences of non-

compliance in this case weigh even more heavily, given the numerous warnings – and actual

sanctions – he has faced in other cases. The second is the unfair impact upon defendants. This

matter has dragged on for years – imposing significant and entirely unnecessary litigation costs

upon defendants and burdens on the Court. Adding the costs and burdens of a trial seems unfair

and unwarranted. As such, the Court, in its discretion, will dismiss the action under Rules 37 and

41 of the Federal Rules of Civil Procedure based upon plaintiff’s egregious and unwarranted non-

compliance with Court orders and failure to prosecute the action.

Conclusion

For the reasons set forth above, the case is DISMISSED. The Clerk of the Court is directed

to enter judgment consistent with this Order and close the case.

2 Those two witnesses – Dave Carr and Gregory Volpe – do not, at first blush, appear to have anything to do with

the instant case. That would appear to render the proposed sanction unworkable.

3 In fact, while Judge Lindsay makes note of “seven other actions O’Neal had filed with the Court,” DE 180 at 2, a

historical search of the ECF database (which includes closed cases), suggests that O’Neal has filed twice that

number.

The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the pro

se plaintiff.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order

would not be taken in good faith and therefore in forma pauperis status is denied for the purpose

of any appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

SO ORDERED.

Dated: Central Islip, New York

September 23, 2021

/s/ Gary R. Brown

HON. GARY R. BROWN

United States District Judge