Sommerville v. NYPD et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS: Upon a careful review of the record and Judge Azracks well-reasoned and very thorough Report and Recommendation, the court finds no clear error and hereby affirms and adopts the Report and Recommendation in its entirety as the opinion of the court. Accordingly, defendants motion to dismiss is denied in its entirety. The Clerk of the Court is respectfully directed to serve a copy of this order upon pro se plaintiff at his address of record on the docket within two days of the date of this Order. Ordered by Judge Kiyo A. Matsumoto on 2/25/2014. (Tsai, Denise)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ORDER ADOPTING REPORT
DETECTIVE WRIGHT and SERGEANT KELLY,
MATSUMOTO, United States District Judge:
On December 2, 2011, pro se plaintiff Wesley
Sommerville (“plaintiff” or “Sommerville”) filed the instant
action pursuant to 42 U.S.C. § 1983 against defendants “NYPD et
al.,” Detective Lindsey Faye (“Faye”), Detective John Wright
(“Wright”), Sergeant Kelly (“Kelly”), Confidential Informant #
06-001752, and Michael Guevara (“Guevara”). (See ECF No. 2,
Compl. filed 12/2/11.)
The events giving rise to the action
occurred on December 12, 2006, when New York Police Department
(“NYPD”) officers stopped plaintiff and seized the vehicle he
(Id. at 2-3.) Plaintiff alleges that the seizure
of his vehicle violated his due process rights.
February 29, 2012, the court granted plaintiff’s motion to
proceed in forma pauperis, and in the same order, dismissed with
prejudice plaintiff’s claims against defendants NYPD, Faye,
Confidential Information # 06-001752, and Guevara.
(ECF No. 9,
Mem. & Order dated 2/29/12.)
On January 7, 2013, plaintiff filed an amended
complaint against the remaining defendants, Wright and Kelly
(ECF No. 28, Am. Compl. filed 1/7/13.)
April 25, 2013, defendants moved to dismiss plaintiff’s amended
complaint under Federal Rule of Civil Procedure 12(b)(6),
arguing that plaintiff’s claims are time-barred and that his
allegations fail to give rise to a cognizable Fourteenth
Amendment procedural due process claim.
(ECF No. 36, Defs.’
Mem. of Law in Support of Motion to Dismiss filed 4/15/13.)
August 29, 2013, the court referred defendants’ motion to
dismiss to the Honorable Joan M. Azrack for a Report and
(See Order Referring Motion dated 8/29/13.)
On February 7, 2014, Judge Azrack issued a Report and
Recommendation recommending that defendants’ motion be denied on
(ECF No. 39, Report and Recommendation dated
First, the R&R concluded that defendants could
not prevail on their arguments that plaintiff had received
proper constitutionally-required notice in the form of a
property voucher of post-deprivation state law remedies and that
state law remedies were adequate.
(See R&R at 10-18.)
the R&R determined that plaintiff’s procedural due process claim
was not time-barred because the injury did not accrue until
plaintiff learned that he had been permanently deprived of his
(See R&R at 22.)
The R&R also informed the parties
that any objections to the report must be filed within fourteen
days of receipt of the report.
(See R&R at 23 (citing 28 U.S.C.
Notice of the R&R was sent electronically to
defendants via the court’s electronic filing system on February
7, 2014, and the court mailed a copy of the R&R to plaintiff on
February 7, 2014.
The statutory period for filing objections
has expired, and to date, no objections have been filed.
generally Docket No. 12-CV-165.)
A district court reviews those portions of a Report
and Recommendation to which a party has timely objected under a
de novo standard of review and “may accept, reject, or modify,
in whole or in part, the findings or recommendations . . .”
U.S.C. § 636(b)(1)(C).
However, where no objections to the
Report and Recommendation have been filed, the district court
“need only satisfy itself that that there is no clear error on
the face of the record.”
Urena v. New York, 160 F. Supp. 2d
606, 609-10 (S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F.
Supp. 1186, 1189 (S.D.N.Y. 1985)).
Upon a careful review of the record and Judge Azrack’s
well-reasoned and very thorough Report and Recommendation, the
court finds no clear error and hereby affirms and adopts the
Report and Recommendation in its entirety as the opinion of the
Accordingly, defendants’ motion to dismiss is denied in
The Clerk of the Court is respectfully directed to
serve a copy of this order upon pro se plaintiff at his address
of record on the docket within two days of the date of this
February 25, 2014
Brooklyn, New York
Kiyo A. Matsumoto
United States District Judge
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