Stacker v. McFadden et al

Filing 92

MEMORANDUM & ORDER -- As set forth in the attached Memorandum & Order: the Court adopts the recommendation of the March 13, 2024 Report and Recommendation, ECF No. 89, that Defendants' Motion to Dismiss be granted with prejudice; Defendan ts' Motion to Dismiss, see ECF Nos. 47, 50, is GRANTED and the Complaint, ECF No. 1, is DISMISSED with prejudice; and Plaintiff's motion at ECF No. 73 is DENIED. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any a ppeal from this Order would not be taken in good faith and therefore denies in forma pauperis status for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to enter judgment and to close this case. The Clerk of Court is further directed to mail a copy of this Order to Plaintiff. Ordered by Judge Diane Gujarati on 5/9/2024. (ECS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------X
Michael Stacker,
Plaintiff,
-against-

MEMORANDUM & ORDER
22-CV-01268 (DG) (MMH)

Detective Michael McFadden, Detective Brett
Huzar, and Detective Rigel Zeledon,
Defendants.
----------------------------------------------------------------X
DIANE GUJARATI, United States District Judge:
On March 13, 2024, Magistrate Judge Marcia M. Henry issued a Report and
Recommendation (“R&R”) recommending that Defendants’ Motion to Dismiss brought pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure should be granted with prejudice. See
generally R&R, ECF No. 89. 1
Following issuance of the R&R, Plaintiff filed two submissions, see ECF Nos. 90, 91,
which the Court construes as Plaintiff’s objections to the R&R.2 Defendants did not file any
objections to the R&R or any response to Plaintiff’s objections to the R&R. See generally
docket.
A district court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P.

1

Familiarity with the detailed procedural history and background of this action is assumed
herein.

2

The filing at ECF No. 90 was received by the Clerk’s Office on March 27, 2024. See ECF No.
90 at 1. The filing at ECF No. 91 was received by the Clerk’s Office on March 29, 2024 and
consists of a copy of the filing at ECF No. 90 as well as various other documents. See
generally ECF No. 91. The Court has considered each of the filings in its entirety. In light of
Plaintiff’s pro se status, the Court liberally construes Plaintiff’s filings in this action. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007).

72(b)(3). A district court “shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1); see also Fed. R. Civ. P. 72(b)(3) (providing that a district court “must determine de
novo any part of the magistrate judge’s disposition that has been properly objected to”); Arista
Recs., LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010) (“As to a dispositive matter, any part of
the magistrate judge’s recommendation that has been properly objected to must be reviewed by
the district judge de novo.”); Lorick v. Kilpatrick Townsend & Stockton LLP, No. 18-CV-07178,
2022 WL 1104849, at *2 (E.D.N.Y. Apr. 13, 2022). To accept those portions of an R&R to
which no timely objection has been made, however, “a district court need only satisfy itself that
there is no clear error on the face of the record.” Lorick, 2022 WL 1104849, at *2 (quoting Ruiz
v. Citibank, N.A., No. 10-CV-05950, 2014 WL 4635575, at *2 (S.D.N.Y. Aug. 19, 2014)); see
also Jarvis v. N. Am. Globex Fund, L.P., 823 F. Supp. 2d 161, 163 (E.D.N.Y. 2011).
In light of Plaintiff’s objections and out of an abundance of caution, the Court reviews de
novo the entirety of the R&R. A review of the R&R, the record, and the applicable law reveals
that Judge Henry properly concluded that Defendants’ Motion to Dismiss should be granted with
prejudice. Accordingly, the Court adopts the R&R’s recommendation that the Motion to
Dismiss be granted with prejudice. 3
Defendants’ Motion to Dismiss, see ECF Nos. 47, 50, 4 is GRANTED and the Complaint,
ECF No. 1, is DISMISSED with prejudice. 5
3

As set forth by Judge Henry, notwithstanding Plaintiff’s pro se status, denial of leave to amend
the Complaint is appropriate here. See R&R at 11.

4

Defendants’ Notice of Motion is filed at ECF No. 47; Defendants’ Memorandum of Law in
support of their Motion to Dismiss is filed at ECF No. 50.

5

Judge Henry also noted that subsequent to argument on Defendants’ Motion to Dismiss,
Plaintiff moved to amend his opposition to the Motion to Dismiss, see R&R at 4-5, and Judge
2

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 denies in forma pauperis status for the purpose of
an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to enter judgment and to close this case. The Clerk of
Court is further directed to mail a copy of this Order to Plaintiff.
SO ORDERED.
/s/ Diane Gujarati
__
DIANE GUJARATI
United States District Judge
Dated: May 9, 2024
Brooklyn, New York

Henry recommended that Plaintiff’s motion should be denied, see R&R at 11. Having
considered Plaintiff’s motion, ECF No. 73, and in light of the above, the motion is denied.
3