Santos

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_______________________________________

BYRON SANTOS,

DECISION AND ORDER

Plaintiff,

and

v.

REPORT AND

RECOMMENDATION

SERGEANT D. FILIGHERA, et al.,

22-CV-6338 EAW CDH

Defendants

_______________________________________

INTRODUCTION

Pro se plaintiff Byron Santos (“Plaintiff”) was formerly an inmate in the

custody of the New York State Department of Corrections and Community

Supervision (“DOCCS”). Plaintiff commenced this action pursuant to 42 U.S.C. § 1983

on August 12, 2022. (Dkt. 1). Following screening of his claims pursuant to 28 U.S.C.

§§ 1915(e)(2)(B) and 1915A(b), Plaintiff was permitted to proceed to service on claims

of sexual assault, excessive force, and deliberate indifference against certain DOCCS

employees (“Defendants”). (See Dkt. 37 at 25-26).

Defendants have moved to dismiss this case with prejudice pursuant to Federal

Rule of Civil Procedure 41(b) due to Plaintiff’s “long history of failing to prosecute the

case and ignoring this Court’s orders,” including his failure to pay a sanction imposed

by the Court after he failed to appear for his noticed deposition. (Dkt. 148-2 at 4).

After Defendants moved to dismiss, Plaintiff filed two letter motions requesting

extensions of time to pay the outstanding sanction. (Dkt. 151; Dkt. 153). For the

reasons that follow, Plaintiff’s requests for extensions of time to pay the sanction are

denied, and I recommend that the District Judge grant Defendants’ motion and

dismiss this case in its entirety, with prejudice.

BACKGROUND

For purposes of this Decision and Order and Report and Recommendation, the

relevant procedural history of this matter begins with the scheduling of Plaintiff’s

deposition.1 On January 21, 2025, defense counsel emailed Plaintiff to inquire as to

dates Plaintiff would be available for deposition. (Dkt. 112-1 at ¶ 11). Plaintiff

repeatedly failed to provide dates of availability and instead took the position that he

would not make himself available for deposition because he did not believe he had

been provided with all the video and audio recordings he had requested. (Id. at ¶¶ 13-

17).

On January 28, 2025, Defendants served and filed a Notice of Deposition on

Plaintiff, providing for a video deposition of Plaintiff on March 4, 2025. (Id. at ¶¶ 3-

4; see Dkt. 107). On March 3, 2025, defense counsel sent an email to Plaintiff

reminding him of the deposition and that it would start at 10:00 a.m. (Dkt. 112-1 at

¶ 6). Plaintiff did not respond to this email. (Id. at ¶ 7). Plaintiff did not appear for

the noticed deposition on March 4, 2025, or provide any excuse for his failure to

appear. (Id. at ¶¶ 9-10). Plaintiff also did not respond to defense counsel’s follow-up

1 This case has been referred to the undersigned for all non-dispositive pretrial

matters. (Dkt. 72; Dkt. 106).

email inquiring why he did not appear and when he would be available in the future

for a deposition. (Id. at ¶ 19).

On March 5, 2025, Defendants filed a motion for sanctions based on Plaintiff’s

failure to appear for his deposition. (Dkt. 112). In a Decision and Order entered on

May 6, 2025, the Court granted Defendants’ motion in part but declined to impose

the requested sanction of dismissal with prejudice. (Dkt. 119 at 10-11). Instead, and

in addition to ordering Plaintiff to appear for a second video deposition, the Court

ordered Plaintiff to pay the fee for his missed deposition within 30 days of Defendants

serving him with a copy of the invoice and filing a copy of the same with the Court.

(Id. at 11). The Court warned Plaintiff that “his failure to pay this fee as ordered

will result in the imposition of additional sanctions, including potentially

the dismissal of this case.” (Id.) (emphasis in original).

On May 6, 2025, Defendants served and filed a copy of an $82.00 invoice from

the court reporting service retained for Plaintiff’s missed deposition. (Dkt. 121; Dkt.

121-1). The 30-day deadline for Plaintiff to pay the $82.00 fee was accordingly June

5, 2025. On June 9, 2025, Defendants filed a second motion for sanctions, in which

they indicated that Plaintiff had not paid the $82.00 fee and had not communicated

with defense counsel about the payment. (Dkt. 123; Dkt. 123-1 at ¶¶ 5-6). Defendants’

motion sought dismissal of this case pursuant to Federal Rule of Civil Procedure

37(d). (Dkt. 123; Dkt. 123-2 at 4).

On July 24, 2025, Defendants filed a letter requesting a discovery conference

with the Court. (Dkt. 130). According to Defendants, at Plaintiff’s deposition, which

was ultimately conducted on June 26, 2025, “Plaintiff revealed he had a full file of

documents pertaining to his allegations in this matter that he had never produced.”

(Id.). When defense counsel asked Plaintiff to produce the documents immediately,

Plaintiff agreed to do so. (Id.). However, Plaintiff did not thereafter produce the

documents and did not respond to defense counsel’s follow-up email. (Id.). The Court

scheduled a telephone conference for August 7, 2025, before the undersigned to

address the matter. (Dkt. 131). Plaintiff was mailed a copy of the Text Order

scheduling the conference, as well as dial-in instructions. (Id.).

On August 7, 2025, defense counsel appeared for the conference by telephone.

(Dkt. 132). Plaintiff did not appear. (Id.). During the conference, defense counsel

advised the Court that he had not heard from Plaintiff since Defendants filed their

request for a conference, and that Plaintiff had still not paid the fee for his missed

deposition.

Later that same day, the Court entered an Order to Show Cause, directing

Plaintiff to show cause in writing with a sworn affidavit within 30 days as to why this

case should not be dismissed for failure to comply with the Court’s directives and for

failure to prosecute, based on his failure to pay the outstanding fee for his missed

deposition and to appear for the August 7, 2025 telephone conference. (Dkt. 133).

On September 4, 2025, the Court received a letter motion from Plaintiff, dated

August 31, 2025, purportedly “in regard to the Order to Show Cause.” (Dkt. 134). In

the letter, Plaintiff asked that the Court’s sanction ordering him to pay the fee for his

missed deposition “be set aside due to [his] unemployment status.” (Id. at 1). Plaintiff

also asked for “an invoice of said sanction amount” (Id.), even though he been served

with a copy of the invoice by Defendants on May 6th. Plaintiff further requested “a

court hearing . . . to better understand w[h]ere this case stands[.]” (Id.). Plaintiff did

not otherwise address his failure to appear for the August 7, 2025 telephone

conference or explain why this case should not be dismissed.

On September 8, 2025, the Court entered an Order noting that Plaintiff’s letter

failed to respond to the underlying directive of the Order to Show Cause and was

procedurally improper insofar as the Order to Show Cause directed him to show cause

through a sworn affidavit. (Dkt. 135 at 1-2). However, given Plaintiff’s pro se status

and his submission of at least some form of response reflecting an interest in

continuing to prosecute this case, the undersigned determined that a

recommendation of dismissal was not warranted at that time. (Id. at 3). Instead, and

considering Plaintiff’s request for a hearing, the Court directed the parties to appear

for an in-person conference before the undersigned on October 8, 2025, to address the

outstanding issues holding the case up and Plaintiff’s obligations in this litigation.

(Id.). The Court warned Plaintiff that “if he fails to appear for this conference

as directed, the Court will impose appropriate sanctions, including

potentially a recommendation that the matter be dismissed with prejudice

for failure to comply with the Court’s directives and for failure to

prosecute.” (Id.) (emphasis in original). A copy of this Order was mailed to Plaintiff,

as was a copy of a subsequent Order rescheduling the in-person conference for

October 10, 2025. (See Dkt. 137). This subsequent Order, which was entered and

mailed on September 9, 2025, reiterated the Court’s warning that failure to appear

would result in the imposition of sanctions, including potentially a recommendation

of dismissal with prejudice. (Id. at 1-2).

On October 10, 2025, defense counsel appeared for the in-person conference,

but Plaintiff again failed to appear. (Dkt. 138). On October 22, 2025, the Court

received a letter motion from Plaintiff, dated October 20, 2025, “requesting another

date to present [himself] to Court,” citing “schedul[ing] issues due to . . . physical

therapy from an accident.” (Dkt. 139). Plaintiff’s letter did not otherwise address or

explain his failure to appear for the October 10, 2025 conference, nor did the letter

explain why he had not communicated his purported “scheduling issues” to the Court

prior to the date of the conference. Nevertheless, and again in light of Plaintiff’s pro

se status, the Court granted Plaintiff’s request for another conference and directed

the parties to appear before the undersigned for an in-person conference on November

20, 2025. (Dkt. 140 at 2). The Court also denied Plaintiff’s earlier request to “set aside”

the monetary sanction for his missed deposition and mailed Plaintiff another copy of

the invoice. (Id.; see Dkt. 140-1).

On November 20, 2025, both Plaintiff and defense counsel appeared for the in-

person conference. (Dkt. 143). During the conference, the Court extended Plaintiff’s

deadline to pay the fee for his missed deposition to February 18, 2026, and later

entered a Text Order memorializing the new deadline. (Dkt. 142). The Court further

denied Defendants’ pending sanctions motion seeking dismissal (Dkt. 123) as moot,

without prejudice to re-filing if Plaintiff did not pay the fee by the extended February

18, 2026 deadline. (Dkt. 142).

On February 19, 2026, Defendants filed a letter advising the Court that

Plaintiff had not paid the fee by the extended deadline or communicated with defense

counsel at all since the November 20, 2025 conference. (Dkt. 146 at 1). Defendants

requested that the case be dismissed. (Id. at 2). The Court directed Defendants to

make their request by formal motion. (Dkt. 147). Defendants filed the instant motion

to dismiss pursuant to Rule 41(b) on February 24, 2026. (Dkt. 148). On February 26,

2026, Chief United States District Judge Elizabeth A. Wolford referred this motion

to the undersigned for a report and recommendation for disposition pursuant to 28

U.S.C. § 636(b)(1)(B). (Dkt. 149). That same day, the undersigned entered a Motion

Scheduling Order, setting March 26, 2026, as the deadline for Plaintiff to respond to

the motion to dismiss. (Dkt. 150 at 2).

On March 2, 2026, the Court received a letter motion from Plaintiff, dated

February 27, 2026, requesting “[two] more weeks to pay the sanctions due to not

knowing how [and] who to send it to,” which Plaintiff says he “explained” to defense

counsel. (Dkt. 151 at 1). On March 5, 2026, Defendants filed a response opposing

Plaintiff’s request for a two-week extension. (Dkt. 152). Defense counsel states that

on February 20, 2026, Plaintiff emailed defense counsel stating that he intended “to

send the money to the Court,” but defense counsel informed Plaintiff “of his obligation

to send the money to [defense counsel], and provided him the correct address.” (Id. at

¶ 12). Plaintiff’s email also “attached documents which had apparently been in his

possession since July of 2024, which he was producing for the first time.” (Dkt. 148-2

at 3).

On April 30, 2026, the Court received another letter motion from Plaintiff,

dated April 11, 2026, requesting “more time” to pay the sanction due to his re-

incarceration. (Dkt. 153 at 1). Plaintiff also stated that he “signed a power of attorney

in the last few days in order to pay [the] sanction.” (Id.). On May 1, 2026, Defendants

filed a response opposing Plaintiff’s further request for an extension, noting that

neither Plaintiff nor anyone purporting to be acting in his interests had contacted

defense counsel. (Dkt. 154 at 1-2).

On July 20, 2026, the Court entered a Text Order instructing Defendants to

“advise the Court in writing as to whether Plaintiff has subsequently paid the

outstanding sanction or otherwise communicated with defense counsel since May 1,

2026.” (Dkt. 155). On July 21, 2026, Defendants filed a letter stating that defense

counsel had “not received payment of the sanction from Plaintiff” and had “received

no communication from Plaintiff since May 1, 2026, by letter, call, email, or any other

form of communication.” (Dkt. 156). Beyond his two letter motions requesting

extensions of the deadline to pay the outstanding sanction, Plaintiff has not filed any

response to Defendants’ motion to dismiss.

DISCUSSION

I. Plaintiff’s Extension Requests

A. Legal Standard

“Federal Rule of Civil Procedure 6(b) governs requests for extensions of time.”

Petaway v. Osden, 827 F. App’x 150, 151 (2d Cir. 2020). Pursuant to Rule 6(b)(1)(B),

“the Court may, for good cause, extend a deadline after it has expired if the party

failed to act because of excusable neglect.” Fearnley Sec., Inc. v. Iwatani Corp. of Am.,

No. 1:25-MC-00223 (AT) (SDA), 2026 WL 1080331, at *5 (S.D.N.Y. Apr. 6, 2026); see

Fed. R. Civ. P. 6(b)(1)(B) (“When an act may or must done within a specified time, the

court may, for good cause, extend the time . . . on motion made after the time has

expired if the party failed to act because of excusable neglect.”).

“To establish excusable neglect . . . a movant must show good faith and a

reasonable basis for noncompliance.” In re Painewebber Ltd. Partnerships Litig., 147

F.3d 132, 135 (2d Cir. 1998). In determining whether a party’s neglect is excusable,

the court should take into account: (1) “the danger of prejudice to the opposing party”;

(2) “the length of the delay and its potential impact on judicial proceedings”; (3) “the

reason for the delay, including whether it was in the reasonable control of the

movant”; and (4) “whether the movant acted in good faith.” Tancredi v. Metro. Life

Ins. Co., 378 F.3d 220, 228 (2d Cir. 2004) (alterations omitted and quoting Pioneer

Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). But

“[w]hile those factors are the central focus of the inquiry, the ultimate determination

depends upon a careful review of ‘all relevant circumstances.’” In re Am. Exp. Fin.

Advisors Sec. Litig., 672 F.3d 113, 129 (2d Cir. 2011) (quoting Pioneer Inv. Servs., 507

U.S. at 395).

B. Application

The Court first addresses Plaintiff’s letter motions requesting extensions of

time to pay the fee for his missed deposition. As these letters are dated after the

extended February 18, 2026 deadline to pay this sanction, Plaintiff must show that

he failed to meet the deadline because of excusable neglect. While there is some

overlap in this instance between the excusable neglect and Rule 41(b) analyses,

Plaintiff’s extension requests do not require a recommended ruling and can be

resolved in the first instance by the undersigned.

To that end, the Court does not find that any extension of time is warranted.

Although the purported basis for Plaintiff’s first extension request, dated February

27, 2026, is that he did not know how and to whom he should pay the sanction (Dkt.

151 at 1), defense counsel has submitted a sworn statement that he explained to

Plaintiff on February 20, 2026—one week before Plaintiff’s extension request—that

he should send the money to defense counsel and gave Plaintiff the proper address to

send it to. (Dkt. 152 at ¶ 12). Moreover, based on defense counsel’s representations,

Plaintiff did not inquire about the logistics of paying the sanction until his February

20, 2026 email—that is, two days after the deadline to pay. And to the extent Plaintiff

had logistical questions about paying the sanction, he had over nine months prior to

the deadline to raise these questions with either defense counsel or the Court,

including at the in-person conference on October 10, 2025. In this respect, Plaintiff’s

conduct evinces neither a good faith effort to pay the sanction by the deadline nor a

reasonable basis for noncompliance.

The purported basis of Plaintiff’s second extension request, dated April 11,

2026, is that he is having difficulty sending the payment to defense counsel due to his

re-incarceration. (Dkt. 153 at 1). However, the New York City Department of

Correction’s Person in Custody Lookup Service, see https://a073-ils-

web.nyc.gov/inmatelookup/pages/detail/body.jsf, indicates that Plaintiff was arrested

on March 17, 2026—approximately a month after the extended deadline to pay the

sanction and defense counsel’s email instructing him how and to whom he should pay.

As Plaintiff’s letter does not elaborate on what difficulties he is facing in sending the

payment to defense counsel, it is unclear if the issue is logistical in nature or a lack

of funds. But in either case, it was well within Plaintiff’s control to address these

issues, if not by the February 18, 2026 deadline, then prior to his arrest.

Furthermore, Plaintiff has had multiple additional months since the filing of

his extension requests to pay the outstanding sanction. Yet Plaintiff has still not paid

the $82.00 fee or communicated with defense counsel regarding payment, despite

representing to the Court in April that he had “signed a power of attorney in the last

few days in order to pay [the] sanction.” (See Dkt. 153 at 1). Lastly, Defendants have

already been prejudiced by Plaintiff’s prolonged failure to pay the sanction.

Defendants are likely to incur further prejudice if the Court grants Plaintiff an

additional extension, as Plaintiff has not provided any reasonable basis to believe

that additional time will lead to payment of the sanction or resolution of this ongoing

matter.

For these reasons, Plaintiff has shown neither excusable neglect nor good cause

for his belated extensions requests. Plaintiff’s letter motions requesting extensions of

time to pay the fee for his missed deposition (Dkt. 151; Dkt. 153) are therefore denied.

The Court turns next to Defendants’ motion to dismiss pursuant to Rule 41(b).

II. Defendants’ Motion to Dismiss

A. Legal Standard

Federal Rule of Civil Procedure 41(b) provides: “If the plaintiff fails to

prosecute or to comply with these rules or a court order, a defendant may move to

dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). “Failure to prosecute

. . . can evidence itself either in an action lying dormant with no significant activity

to move it or in a pattern of dilatory tactics.” Lyell Theatre Corp. v. Loews Corp., 682

F.2d 37, 42 (2d Cir. 1982).

“A district court considering a Rule 41(b) dismissal must weigh five factors: (1)

the duration of the plaintiff’s failure to comply with the court order, (2) whether

plaintiff was on notice that failure to comply would result in dismissal, (3) whether

the defendants are likely to be prejudiced by further delay in the proceedings, (4) a

balancing of the court’s interest in managing its docket with the plaintiff’s interest in

receiving a fair chance to be heard, and (5) whether the judge has adequately

considered a sanction less drastic than dismissal.” Baptiste v. Sommers, 768 F.3d 212,

216 (2d Cir. 2014) (quotation omitted); see also U.S. ex rel. Drake v. Norden Sys., Inc.,

375 F.3d 248, 254 (2d Cir. 2004) (formulating same factors in the failure to prosecute

context). “No single factor is generally dispositive.” Baptiste, 768 F.3d at 216.

A pro se plaintiff’s “claim should be dismissed for failure to prosecute only when

the circumstances are sufficiently extreme.” Id. at 217 (quotation omitted). However,

“[t]he severe sanction of dismissal with prejudice may be imposed even against a

plaintiff who is proceeding pro se, so long as a warning has been given that

noncompliance can result in dismissal.” Valentine v. Museum of Mod. Art, 29 F.3d 47,

50 (2d Cir. 1994).

B. Application

Having carefully considered the foregoing factors, the Court concludes that a

recommendation of dismissal with prejudice is appropriate based on Plaintiff’s

prolonged failure to comply with the Court’s order to pay the fee for his missed

deposition, in conjunction with his failure to otherwise prosecute this action.2

2 The Court notes that Defendants’ previous motion to dismiss sought dismissal

pursuant to Rule 37(d) (See Dkt. 123; Dkt. 123-2 at 3). Under Rule 37(d), the Court

may sanction a party who “fails, after being served with proper notice, to appear for

that person’s deposition.” Fed. R. Civ. P. 37(d)(1)(A)(i). Rule 37(d) permits the

imposition of any sanction listed in Rule 37(b)(2)(A)(i)-(vi), which includes “dismissing

the action or proceeding in whole or in part.” While the basis for dismissal here arises

out of Plaintiff’s failure to appear for his noticed deposition, it encompasses

subsequent and much wider conduct, and it is therefore more appropriately analyzed

under Rule 41(b). But in any event, “[t]he difference between dismissals under Rule

37(b) and Rule 41(b) is small, and the Second Circuit has recognized they are guided

largely by the same analysis.” Peña v. Chocolate, No. 10 CIV. 4067 BSJ KNF, 2012

WL 3957474, at *3 (S.D.N.Y. Sept. 10, 2012) (citing Peters–Turnbull v. Board of Educ.

Of City of New York, 7 F. App’x 107, 110 (2d Cir. 2001)); see also Bloodywone v. McCoy,

No. 19-CV-6773-EAW-MJP, 2024 WL 4329921, at *9 (W.D.N.Y. Mar. 26, 2024)

(magistrate judge recommending dismissal pursuant to Rule 37 “based on [his]

analysis of the factors for dismissal under Rule 41(b)”).

With respect to the first factor, Plaintiff’s failure to comply with the Court’s

sanction has persisted for a significant amount of time. The original deadline for

Plaintiff to pay the fee for his missed deposition was June 5, 2025, over a year ago.

See Masjid Al-Arapha, Inc. v. JPMorgan Chase Bank, N.A., No. 21-CV-02153 (LDH),

2022 WL 4329459, at *2 (E.D.N.Y. Sept. 19, 2022) (“Dismissal is proper here. . . .

[M]ore than a year has lapsed since Plaintiff was first directed to respond to

Defendant’s request for a pre-motion conference.”). Even on its own, the nearly six-

month delay since Plaintiff failed to comply with the February 18, 2026 extended

deadline to pay the sanction is significant enough to warrant dismissal. See Leybinsky

v. United States Citizenship & Immigr. Servs., No. 19-CV-6154-RPK-LB, 2020 WL

7295661, at *2 (E.D.N.Y. Dec. 2, 2020) (“courts have consistently found that delays in

the range of six months counsel in favor of [dismissal]”).

Plaintiff’s failure to prosecute has also caused a delay of significant duration.

In the nearly 15 months since the Court imposed its sanction, Plaintiff appears to

have taken little action to prosecute this case aside from sitting for his deposition

(after being ordered to do so by the Court) and making a belated partial production

of documents in February 2026, 10 months after the close of discovery (see Dkt. 80 at

2). See Hunter v. New York State Dep’t of Corr. Servs., 515 F. App’x 40, 42 (2d Cir.

2013) (noting delay was “of significant duration” where the plaintiff had not taken

any action to prosecute her case in more than 14 months besides sitting for her

deposition). Together, Plaintiff’s failure to pay the fee for his missed deposition, his

failure to appear for multiple conferences necessitated by his noncompliance in

discovery, and his failure to prosecute his claims have brought this case to a standstill

and are preventing it from moving forward.

As to the second factor, Plaintiff was on notice that his failure to comply with

the Court’s orders may result in dismissal. When the Court first ordered Plaintiff to

pay the fee for his missed deposition in its May 6, 2025 Decision and Order, it

explicitly warned Plaintiff that his failure to pay the fee would result in the

imposition of additional sanctions, including potentially dismissal of this case. (Dkt.

119 at 11). The Court reiterated this warning when it entered its Order to Show

Cause on August 7, 2025. (Dkt. 133 at 1). The Court also warned Plaintiff that his

failure to appear for the in-person conference that took place on October 10, 2025,

could result in a recommendation that this case be dismissed. (Dkt. 135 at 3; Dkt. 137

at 1-2).

As to the third factor, Defendants are likely to be prejudiced by a further delay

in the proceedings. “[P]rejudice resulting from unreasonable delay may be presumed

as a matter of law[.]” Peart v. City of New York, 992 F.2d 458, 462 (2d Cir. 1993). For

reasons already discussed, Plaintiff’s failure to comply with the Court’s orders and to

prosecute this action have unreasonably delayed this matter, and the Court can thus

presume prejudice. But even absent this presumption, further delay carries a risk of

actual prejudice. Because the underlying allegations in this matter concern incidents

from 2022, including one alleged incident that was apparently not recorded by video

(see Dkt. 148-2 at 5-6), further delay may impact Defendants’ ability to recall

information relevant to their defense. See Ruzsa v. Rubenstein & Sendy Attys at L.,

520 F.3d 176, 177 (2d Cir. 2008) (noting that “further delay . . . was likely to prejudice

[the defendant’s] ability to defend against this suit, as the salient events receded even

farther into the past”) (quotation and original alterations omitted); see also Millet v.

Selip & Stylianou LLP, No. 15-CV-00773-LJV-MJR, 2020 WL 5237767, at *2

(W.D.N.Y. Aug. 14, 2020) (“Lapses in time compromise witnesses’ availability and

their ability to accurately recall the pertinent events.”), adopted, 2020 WL 5230802

(W.D.N.Y. Sept. 1, 2020). The Court also previously denied without prejudice

Defendants’ first motion seeking dismissal based on Plaintiff’s failure to pay the fee

for his missed deposition (Dkt. 123), so as to afford Plaintiff more time to pay. Further

delay will prejudice Defendants by rendering yet another round of motion practice on

this issue moot through no fault of their own.

The fourth factor requires the Court to balance its interest in managing its

docket with Plaintiff’s interest in receiving a fair chance to be heard. Here, “the fact

that [Plaintiff] repeatedly disobeyed court orders vastly diminishes his right to have

his claim heard by this Court.” Feurtado v. City of New York, 225 F.R.D. 474, 480

(S.D.N.Y. 2004). Moreover, Plaintiff’s lack of response to the instant motion to dismiss

(beyond his two extension requests that do not acknowledge the motion to dismiss)

does not reflect an especially strong interest in having his claims heard on the merits.

This is not to say that Plaintiff’s noncompliance in this matter has been “silent

and unobtrusive.” LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 210 (2d Cir. 2001).

To the contrary, the Court has repeatedly invested time and resources into addressing

Plaintiff’s noncompliance, including scheduling a conference at Plaintiff’s request for

which he failed to appear with no meaningful explanation. And following the Court’s

imposition of the sanction for his missed deposition, Plaintiff has only made sporadic

filings, generally consisting of untimely and weakly-supported requests for

extensions or continuances that vaguely allude to efforts to pay the sanction. But with

no indication that he has made any progress in paying the sanction over this period

of time, these filings appear to have been merely “a pattern of dilatory tactics” on

Plaintiff’s part. Lyell Theatre Corp., 682 F.2d at 42.

Finally, as to the fifth factor, I find that lesser sanctions would be inadequate.

The instant motion to dismiss stems in part from Plaintiff’s prolonged failure to

comply with a lesser (and fairly modest) monetary sanction. The Court also afforded

Plaintiff a significant extension of time to pay the sanction—from June 5, 2025, to

February 18, 2026—and he has had even more time to pay during the pendency of

Defendants’ motion to dismiss. In addition, past warnings that the Court will impose

further sanctions, including dismissal, if Plaintiff does not pay the fee for his missed

deposition or attend court appearances have been ineffective in spurring Plaintiff’s

compliance with the Court’s orders. See Randolph v. Griffin, No. 12-CV-745S, 2021

WL 795311, at *3 (W.D.N.Y. Mar. 2, 2021) (“no lesser sanction would be appropriate

as Randolph’s repeated failure to comply with this Court’s multiple dismissal

warnings demonstrates that lesser sanctions would be ineffective”); Martin v. City of

New York, No. 09 CIV. 2280 PKC JLC, 2010 WL 1948597, at *2 (S.D.N.Y. May 11,

2010) (“The fact that plaintiff was warned that noncompliance would result in

dismissal of her claims and chose not to comply illustrates that lesser sanctions would

be insufficient to remedy her failure.”).

In sum, each of the applicable factors militates in favor of dismissal. The

undersigned accordingly recommends that the District Judge grant Defendants’

motion (Dkt. 148) and dismiss this matter in its entirety, with prejudice, based on

Plaintiff’s failure to comply with the Court’s orders and to prosecute this matter.

CONCLUSION

For the foregoing reasons, Plaintiff’s requests for extensions of time to pay the

fee for his missed deposition (Dkt. 151; Dkt. 153) are denied, and I recommend that

the District Judge grant Defendants’ motion to dismiss pursuant to Rule 41(b) (Dkt.

148) and dismiss this matter in its entirety, with prejudice.

Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED that this Report and

Recommendation be filed with the Clerk of Court.

Any objections to this Report and Recommendation must be filed with the

Clerk of Court within fourteen (14) days after receipt of a copy of this Report and

Recommendation in accordance with the above statute, Federal Rule 72(b), Federal

Rule 6(a) and (d), and Local Rule 72(b).

Failure to file objections within the specified time or to request an

extension of such time waives the right to appeal the District Judge’s Order.

See Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd &

Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).

The District Judge will ordinarily refuse to consider on de novo review

“arguments, case law and/or evidentiary material that could have been, but was not,

presented to the Magistrate Judge in the first instance.” See Dallio v. Hebert, 678 F.

Supp. 2d 35, 41, n.1 (N.D.N.Y. 2009); see also Paterson-Leitch Co., Inc. v. Mass. Mun.

Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988).

Pursuant to Local Rule of Civil Procedure 72(b), “[w]ritten objections... shall

specifically identify the portions of the proposed findings and recommendations to

which objection is made and the basis for each objection, and shall be supported by

legal authority.” Failure to comply with the provisions of Rule 72(b), or with

the similar provisions of Rule 72(a) (concerning objections to a Magistrate

Judge’s Decision and Order), may result in the District Judge’s refusal to

consider the objection.

SO ORDERED.

[Ll Dalal

GOLLEEN D. HOLLAND

United States Magistrate Judge

Dated: August 5, 2026

Rochester, New York

-19-