Brooks v. Sposato et al

Filing 132

ORDER ADOPTING REPORT AND RECOMMENDATIONS of Magistrate Judge Pollak. ( Ordered by Judge Sandra L. Townes on 9/23/2014 ) *Forwarded for judgment. (Guzzi, Roseann)

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UNITED STATES DISTRJCT COURT
EASTERN DISTRJCT OF NEW YORK
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DA YID H. BROOKS,

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i'ROOKLYN OFFICE
Plaintiff,

ORDER ADOPTING
REPORT AND RECOMMENDATION

-againstMICHAEL SPOSATO, et al.,

I l-CV-2598 (SLT)(CLP)

Defendants.

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This is one of two actions currently pending before this Court in which plaintiff David H.
Brooks seek damages for Eighth Amendment violations and medical malpractice which allegedly
occurred in January and February of2010, while plaintiff was incarcerated in the Nassau County
Correctional Center ("NCCC") and the Queens Private Detention Facility ("QPDF"), a privately
operated facility. This, the first action, was commenced on April 18, 2011, when plaintiff filed a
complaint in the United States District Court for the Southern District of New York naming
Michael Sposato, then the Acting Sheriff of Nassau County and the Warden of the NCCC; six
other individuals and 100 Does as defendants. Three of the individual defendants were
employees of the QPDF: its warden, William Zerillo; its Supervising Health Services
Administrator, Jason Maffia; and a psychiatrist, Dr, Lyubov Gorelik. The other three individual
defendants-Timothy Hogan, Richard Viets, and John Quaranto (collectively, the "Marshal
Defendants"}-were Deputy United States Marshals.
On May 24, 2011, upon the motion of the Marshal Defendants, this action was transferred
to this Court. Thereafter, Sposato and the three QPDF employees answered the complaint. The
Marshal Defendants, however, requested and received permission to move to dismiss the
complaint pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(I).

The fully briefed motion to dismiss was filed on the Court's Electronic Case Filing
("ECF") system on March 19, 2012. Later that same day, plaintiff filed a "Notice of Dismissal
Without Prejudice," dismissing his claims against the Marshal Defendants without prejudice
pursuant to Fed. R. Civ. P. 41 (a)(I )(A)(i). Although plaintiff did not need a Court order to
dismiss these defendants-none of whom had answered or moved for summary judgment-this
Court "granted" the dismissal, noting, "The action is dismissed as to Timothy Hogan, Richard
Viets and John Quaranto." The action continued with respect to the remaining defendants.
On June 6, 2012, plaintiff commenced a second action in the Supreme Court of the State
of New York, Nassau County. The second action-Brooks v. Sposato, No. 12-CV-4740
(SLT)(CLP)-was brought against the Marshal Defendants, the other defendants named in the
first action (including the 100 Does), and four additional defendants: Nassau Health Care
Corporation ("NHCC"); Perry Intal, a Nurse Practitioner employed by NHCC to provide services
at NCCC; The GEO Group, Inc. ("GEO Group"), which owned and operated the QPDF; and
GEO Care, Inc., a wholly owned subsidiary of GEO Group which allegedly provided healthcare
services at QPDF. Despite the additional defendants, the second action alleged essentially the
same facts as the first cause of action. On September 21, 2012, the Marshal Defendants removed
the second action to this Court.
On January 30, 2013, Andrew Goodman, then the attorney for plaintiff, wrote a letter to
Magistrate Judge Pollak, stating that plaintiff had authorized him to advise the Court that
plaintiff wished to dismiss the remaining claims in this action. After noting that plaintiff had
already voluntarily dismissed his claims against the Marshal Defendants without prejudice, Mr.
Goodman requested that plaintiff's Eighth Amendment claims against Zerillo, Maffia, and
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Gorelik be dismissed with prejudice, and that plaintiff's claims against Sposato and his medical
malpractice claims against Gorelik be dismissed without prejudice pursuant to Fed. R. Civ. P.
4l(a)(2). On February 28, 2013, Judge Pollak held a status conference relating to both of
plaintiff's actions, at which plaintiff's counsel again represented that plaintiff wished to dispose
of this action and to pursue only the second action.
About one week after the status conference, Judge Pollak issued a report and
recommendation dated March 7, 2013 (the "R&R) in which she recommended that this case "be
dismissed as plaintiff requests in his January 30, 2012 [sic] letter." R&R at 4. That R&R
specifically advised the parties that any objections to the R&R had to be filed with the Clerk of
Court within fourteen days of their receipt of the R&R.
On March 12, 2013, Mr. Goodman filed a "Partial Objection" to the R&R. That
document took "no issue with any dispositive element" of the R&R, Partial Objection at 3, but
sought to clarify plaintiff's reasons for discontinuing this action and commencing the second
action. To date, none of the defendants have filed objections to the R&R. Accordingly, it is

ORDERED that Judge Pollak's report and recommendation dated March 7, 2013, is
adopted pursuant to 28 U.S.C. § 636(b)(l). Plaintiffs Eighth Amendment claims against
defendants William Zerillo, Jason Maffia, and Dr. Lyubov Gorelik are dismissed with prejudice;
plaintiffs claims against defendant Michael Sposato and his medical malpractice claims against
Dr. Gorelik are dismissed without prejudice pursuant to Fed. R. Civ. P. 41(a)(2); and the Clerk of
Court is directed to close this case.

/s/(SLT)

/SANDRA L. TOWNES
Dated:

United States District Judge

September~, 2014
Brooklyn, New York
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