Haydenn v. City of New York et al

Filing 12

ORDER ADOPTING 8 REPORT AND RECOMMENDATIONS. The court dismisses Plaintiff's claims against Tong and Downes pursuant to Federal Rule of Civil Procedure 4(m). Ordered by Judge Nicholas G. Garaufis on 9/27/2011. (Lee, Tiffeny)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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BROOKLYN OFFICE

ANTHONY HAYDENN,

Plaintiff,

ORDER
11-CV-1003 (NGG) (LB)

-againstCITY OF NEW YORK, POLICE OFFICER
TONG, SERGEANT WHEELER, SERGEANT
FREIDMAN, POLICE OFFICER DOWNES,
SERGEANT KURTZ, and POLICE OFFICERS
JOHN DOES #1-2,
Defendants.

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NICHOLAS G. GARAUFIS, United States District Judge.

On March 2, 2011, Plaintiff Anthony Haydenn commenced this civil rights action, pursuant to 42
U.S.C. § 1983 and other federal law, against Defendants the City ofNew York (the "City"), Police
Officer Tong, Sergeant Wheeler, Sergeant Freidman, Police Officer Downes, Sergeant Kurtz, and Police
Officers John Does #1-2. (Compl. (Docket Entry# 1).) Plaintiff has not filed any record with the court
that indicates that he served Defendants Tong or Downes.
On August 9, 2011, Magistrate Judge Lois Bloom held an initial pretrial conference. (See
Docket Entry of August 10, 2011.) The following day, August 10,2011, Judge Bloom issued an order
directing Plaintiff to file proof that defendants Tong and Downes were served with process by August
19, 2011. (Jgj Judge Bloom's order explicitly warned Plaintiff that "[i]fproof of service is not filed by
August 19, 2011, Plaintiff's claims against defendants Tong and Downes shall be dismissed without
prejudice under Ru1e 4(m) of the Federal Ru1es of Civil Procedure." 1 (ld.) Plaintiff failed to file proof
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Federal Rule of Civil procedure 4(m) governs the time limit for service, as follows:
If a defendant is not served within 120 days after the complaint is filed, the court- on motion or on its
own after notice to the plaintiff- must dismiss the action without prejudice against that defendant or order
that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in
a foreign country under Rule 4( f) or 4(jX I).

of service on Defendants Tong and Downes as Judge Bloom directed.
On September 8, 2011, Judge Bloom issued a Report & Recommendation ("R&R"),
recommending that the court dismiss Plaintiffs claims against Tong and Downes pursuant to Rule 4(m).
(R&R (Docket Entry# 8)); see also Fed. R. Civ. R. 72(b)(l). No party has objected to Judge Bloom's
R&R, and the time to do so has now passed. See 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(2).
In reviewing the report and recommendation of a dispositive matter from a magistrate judge, the
district court "may adopt those portions of the Report to which no objections have been made and which
are not facially erroneous." La Torres v. Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y. 2000); see also
Porter v. Potter, 219 F. App'x 112, I 13 (2d Cir. 2007) (failure to object waives further judicial review).
Having reviewed Judge Bloom's R&R for clear error and found none, the court adopts her
recommendation. Accordingly, the court dismisses Plaintiffs claims against Tong and Downes
pursuant to Federal Rule of Civil Procedure 4(m).
SO ORDERED.

s/Nicholas G. Garaufis
NICHOLAS G. GARAUFIS
United States District Judge

Dated: Brooklyn, New York
September ~1, 2011

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