Heckman v. The Town of Hempstead et al

Filing 51

ORDER ADOPTING 48 REPORT AND RECOMMENDATIONS: granting 35 Motion to Dismiss; granting 43 Motion to Dismiss; and granting 24 Motion to Dismiss. SO ORDERED that (I) the amended complaint is dismissed in its entiretywith prejudice as against R amos, Keane and the County; and (2) plaintiffs claims against the Town defts are dismissed in their entirety without prejudice and with leave to amend in accordance with the Report and this Order, and to replead his state law claims to plead complian ce with state law notice of claim requirements, within thirty (30) days after this Order is served with notice of entry upon him, or his claims against the Town defts will be deemed dismissed with prejudice. The parties are advised that the conference scheduled to be held before me on March 28, 2012 is hereby adjourned until Apri1 30, 2012 at 11:15 a.m.. Ordered by Judge Sandra J. Feuerstein on 3/27/2012. (Florio, Lisa)

FILED
IN CLERK'S OFFICE
U S DISTRICT COURT E D N Y

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

MAR 2 7 2012

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LONG ISLAND OFFICE

-------------------------------------------------------------)(
HENRY HECKMANN,
Plaintiff,
ORDER
l 0-CV -5455 (SJF)(GRB)

-againstTHE TOWN OF HEMPSTEAD, et al.,
Defendants.

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FEUERSTEIN, District Judge:

Pending before the Court are the objections of plaintiff Henry Heckmann ("plaintiff'') to so
much of the Report and Recommendation of Magistrate Judge Gary R. Brown ("the Report"), dated
February 24, 2012, as recommends: ( l) that his claims against Nassau County ("the County") and
defendants Town of Hempstead, Raymond Schwartz, Roy Gunther, Ralph Vallarevella, Robert
Steppe, Glenn Fordsman, Sal Mastracchio and Tom Bove (collectively, "the Town defendants")
under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, be dismissed in their
entirety; and (2) that plaintiffs state law claims against the Town defendants (sixth and seventh
causes of action) be sua sponte dismissed. 1 For the reasons stated herein, the Court accepts
Magistrate Judge Brown's Report.

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Magistrate Judge Brown further recommended: (I) that in the event that I decline to
dismiss the amended complaint as against the County for failure to state a claim and/or grant plaintiff
leave to replead his claims against the County, that I hold a traverse hearing with respect to the
branch of the County's motion seeking dismissal of the amended complaint against it based upon
plaintiffs failure to properly serve it with a summons; (2) that plaintiffs Section 1983 claim against
the Town defendants (first cause of action) be dismissed without prejudice and with leave to replead;
and (3) that plaintiffs unopposed motion to voluntarily dismiss his state law claims against
defendants Police Officers Damian Ramos ("Ramos") and Michael Keane ("Keane") be granted and
that those defendants be dismissed from this action with prejudice. No party has filed any objections
to those branches of the Report. Upon review, the Court finds that those branches of the Report are
not facially erroneous and, therefore, accepts those branches of the Report in their entirety.

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I.

Standard of Review
Rule 72 of the Federal Rules of Civil Procedure permits magistrate judges to conduct

proceedings on dispositive pretrial matters without the consent of the parties. Fed. R. Civ. P. 72(b).
Any portion of a report and recommendation on dispositive matters to which a timely objection has
been made is reviewed de novo. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). However, the court is
not required to review the factual findings or legal conclusions of the magistrate judge as to which no
proper objections are interposed. See, Thomas v. Am. 474 U.S. 140, 150, 106 S.Ct. 466,88 L.Ed.2d
435 (1985). To accept the report and recommendation of a magistrate judge to which no timely
objection has been made, the district judge need only be satisfied that there is no clear error apparent
on the face of the record. See Fed. R. Civ. P. 72(b); Johnson v. Goord, 487 F.Supp.2d 377,379
(S.D.N.Y. 2007), affd, 305 Fed. Appx. 815 (2d Cir. Jan. I, 2009); Baptichon v. Nevada State Bank,
304 F.Supp.2d 451,453 (E.D.N.Y. 2004), affd, 125 Fed.Appx. 374 (2d Cir. 2005). Whether or not
proper objections have been filed, the district judge may, after review, accept, reject, or modifY any
of the magistrate judge's findings or recommendations. 28 U.S.C. § 636(b)(l); Fed.R.Civ.P. 72(b).

ll.

Objections
Plaintiff contends, inter alia, that Magistrate Judge Brown erred: (I) in recommending that

his ADA claims be dismissed for failure to state a claim (a) based upon pleading deficiencies not
raised by any of the defendants and (b) because he "fail[ed] to recognize that regulations issued by
the department of Justice pursuant to the [ADA] define discrimination more broadly than the literal
language of Title II [of the ADA], and that Town and County defendants acted illegally in violation
of those regulations and the cases interpreting them," (Plaintiffs Memorandum of Law in Objection
to Magistrate Brown's Report and Recommendation ["PI f. Obj."], at 6); and (2) in sua sponte
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recommending that his state law claims be dismissed since he filed a notice of claim in compliance
with state law. Plaintiff also seeks leave to file a second amended complaint repleading both his
AD A claims and Section 1983 procedural due process claims and submits a proposed second
amended complaint purportedly responding to the deficiencies in the amended complaint identified
in the Report.
Upon de novo review of the Report and all motion papers, and consideration of plaintiffs
objections, the proposed second amended complaint and the County's response thereto, the Report is
accepted in its entirety.

III.

Conclusion
For the reasons set forth in the Report: (I) the amended complaint is dismissed in its entirety

with prejudice as against Ramos, Keane and the County; and (2) plaintiffs claims against the Town
defendants are dismissed in their entirety without prejudice and with leave to amend in accordance
with the Report and this Order, and to replead his state law claims to plead compliance with state
law notice of claim requirements, within thirty (30) days after this Order is served with notice of
entry upon him, or his claims against the Town defendants will be deemed dismissed with

prejudice. The parties are advised that the conference scheduled to be held before me on March 28,
2012 is hereby adjourned until Apri130, 2012 at 11:15 a.m.

SO ORDERED.

s/ Sandra J. Feuerstein
SANDRA J. FEUERSTEIN
United States District Judge

Dated: March 27,2012
Central Islip, New York

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