Beazer v. New York State Office of Mental Health et al

Filing 33

ORDER ADOPTING REPORT AND RECOMMENDATIONS : IT IS HEREBY ORDERED that defendants' motion to dismiss is granted with prejudice with respect to plaintiffs 42 U.S.C. § 1983 and Fourteenth. Amendment claims; plaintiffs Title VII discrimination claims against the individual defendants; and any claims arising from the Arbitration Consent Award. Plaintiffs Title VIIdiscrimination claim against defendant New York State Office of Mental Health-Creedmoor Psychiatric Center OMH and his Title VII retaliation claim against all defendants, as well as any state law claims, are dismissed without prejudice. If plaintiff intends to file an amended complaint, he may file an amended complaint within thirty days of this Order. Plaintiff is warned that if he fails to file an amended complaint within thirty days, the Court may dismiss the federal claims with prejudice, without further notice, for failure to prosecute, pursuant to Rule 41 (b) of the Federal Rules of Civil Procedure.The Court certifi es pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. Ordered by Judge Joseph F. Bianco on 8/28/2017. (Bollbach, Jean)cm by chambers

FILE 0

IN CLERK'S OFFICE
U.S. DISTRICT COURT e.o.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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JAMES BEAZER,

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AUG ~a 2017

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LONG ISbANC OFFICE
Plaintiff,
ORDER
l 5-CV-4587 (JFB) (AYS)

-againstNEW YORK STATE OFFICE OF MENTAL
HEALTH-CREEDMOOR PSYCHIATRIC
CENTER, ANN MARIE BARBAROTTA,
VIODELDA HO-SHING, SUSAN ADAMS, DON :
HUFFMAN, RONALD ERMANN, VICTOR
MARSHALL,
Defendants.

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JOSEPH F. BIANCO, District Judge:
Before the Court is a Report and Recommendation ("R&R," ECF No. 30) from Magistrate
Judge Shields recommending that the Court grant defendants' motion to dismiss (ECF No. 24).
The R&R instructed that any objections to the R&R be submitted within fourteen (14) days of
service of the R&R.. (See R&R, dated June 5, 2017, at 25.) Defendants served the R&R on prose
plaintiff on June 7, 2017. (ECF No. 32.) Accordingly, the date for filing any objections has since
expired, and plaintiff has not filed any objection to the R&R. For the reasons set forth below, the
Court adopts the thorough and well-reasoned R&R in its entirety, and grants defendants' motion
to dismiss plaintiffs complaint.
Where there are no objections, the Court may adopt the report and recommendation without
de novo review. See Thomas v. Arn, 474 U.S. 140, 150 (1985) ("It does not appear that Congress

intended to require district court review of a magistrate's factual or legal conclusions, under a de
novo or any other standard, when neither party objects ,to those findings."); see also Mario v. P &
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C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Where parties receive clear notice of the
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consequences, failure timely to object to a magistrate's report and recommendation operates as a
waiver of further judicial review of the magistrate's decision."); cf 28 U.S.C. § 636(b)(l)(c) and
Fed. R. Civ. P. 72(b)(3) (requiring de novo review after objections). However, because the failure
to file timely objections is not jurisdictional, a district judge may still excuse the failure to object
in a timely manner and exercise its discretion to decide the case on the merits to, for example,
prevent plain error. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) ("[B]ecause the waiver
rule is non jurisdictional, we 'may excuse the default in the interests of justice."' (quoting Thomas,
474 U.S. at 155)).
Although plaintiff has waived any objection to the R&R and thus de novo review is not
required, the Court has conducted a de novo review of the R&R in an abundance of caution.
Having conducted a review of the full record and the applicable law, and having reviewed the
R&R de novo, the Court adopts the findings and recommendations contained in the well-reasoned
and thorough R&R in their entirety. Accordingly, IT IS HEREBY ORDERED that defendants'
motion to dismiss is granted with prejudice with respect to plaintiffs 42 U.S.C. § 1983 and
Fourteenth. Amendment claims; plaintiffs Title VII discrimination claims against the individual
defendants; and any claims arising from the Arbitration Consent Award. Plaintiffs Title VII
discrimination claim against defendant New York State Office of Mental Health-Creedmoor
Psychiatric Center OMH and his Title VII retaliation claim against all defendants, as well as any
state law claims, are dismissed without prejudice. If plaintiff intends to file an amended complaint,
he may file an amended complaint within thirty days of this Order. Plaintiff is warned that if he
fails to file an amended complaint within thirty days, the Court may dismiss the federal claims
with prejudice, without further notice, for failure to pros~cute, pursuant to Rule 41 (b) of the Federal

2

Rules of Civil Procedure.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

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Dated:

August~ 2017
Central Islip, NY

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T'o l C. .:I~. BIANCO

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ED STATES DISTRICT JUDGE