UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ___________________________________

MAURICE BURGESS,

Plaintiff, DECISION AND ORDER v. 6:19-CV-06617 EAW SCOTT BANASZAK, OFFICER T. KIBLER, OFFICER McJURY, OFFICER HAYS, STEVEN HAYES, JOHN DOE 4, OFFICER FOSTER, SERGEANT SORRELL, DSS D. CLARY, OFFICER ROBERTS, OFFICER REDDIEN, SEARGENT RAPINI, OFFICER NORTON, ADS C. LICATA, OFFICER S., SGT. HARTMAN,

Defendants. ____________________________________

INTRODUCTION Pro se plaintiff Maurice Burgess (“Plaintiff”) initiated this action pursuant to

on August 21, 2019. (Dkt. 1). Currently pending before the Court is a Report and Recommendation (the “R&R”) issued by United States Magistrate Judge Marian W. Payson recommending the dismissal of Plaintiff’s claims with prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). (Dkt. 59). For the reasons set forth below, the Court adopts the R&R and dismisses Plaintiff’s claims with prejudice. BACKGROUND As set forth in more detail in the R&R, Judge Payson previously issued an Order to

Show Cause why this case should not be dismissed for failure to prosecute on March 10, 2023, after Plaintiff failed to attend two telephone scheduling conferences, in February and March 2023. (Dkt. 59 at 1; see also Dkt. 43). Plaintiff responded to that Order, and Judge Payson provided him with one additional opportunity by rescheduling the telephone conference for May 30, 2023. (Dkt. 59 at 1-2; see also Dkt. 46). Plaintiff and counsel for Defendants who have appeared in this action appeared at the conference, and Judge Payson

issued a Scheduling Order. (Dkt. 59 at 2; see also Dkt. 47; Dkt. 48). As discussed in the R&R, Plaintiff did not respond to Defendants’ repeated requests for responses to the interrogatories that they had served on August 1, 2023. (Dkt. 59 at 2). Plaintiff was served a deposition notice on October 27, 2023, and he failed to appear for his deposition scheduled for December 7, 2023. (Id.; Dkt. 53; Dkt. 54-1 at ¶ 4). On

December 11, 2023, Defendants filed a motion to dismiss based upon Plaintiff’s failure to attend his deposition, and Plaintiff did not respond in opposition. (Dkt. 59 at 2; see also Dkt. 54). Judge Payson issued an R&R on April 29, 2024, recommending that the motion to dismiss be denied (Dkt. 57), and the same day, issued an Order to Show Cause why the case should not be dismissed for failure to prosecute (Dkt. 58). Plaintiff did not respond

to the Order to Show Cause. On May 29, 2024, Judge Payson issued the instant R&R, recommending the dismissal of Plaintiff’s claims. (Dkt. 59). No party filed objections to the R&R. DISCUSSION Pursuant to

(b)(1), the parties had 14 days to file objections to the R&R. No objections were filed. The Court is not required to review de novo those portions of a report and recommendation to which objections were not filed. See Mario v. P&C Food Mkts., Inc.,

(2d Cir. 2002) (“Where parties receive clear notice of the consequences, failure [to timely] object to a magistrate’s report and recommendation operates as a waiver of further judicial review of the magistrate’s decision.’). Notwithstanding the lack of objections, the Court has conducted a careful review of the R&R, as well as the prior proceedings in the case, and finds no reason to reject or modify the R&R. Accordingly, Plaintiffs claims will be dismissed with prejudice for failure to prosecute. ! CONCLUSION For the foregoing reasons, the Court adopts the R&R (Dkt. 59) and dismisses Plaintiffs claims with prejudice. SO ORDERED.

l ap JSQ/ (194 /_X 70 JEON C_ pf ELIZABEWH A WOERQRDY Chief_lidge United States District Court Dated: June 28, 2024 Rochester, New York

Because the Court dismisses Plaintiff's claims for failure to prosecute, Defendants’ motion to dismiss (Dkt. 54) and the R&R recommending denial of the motion to dismiss (Dkt. 57) are moot. -3-