Lynch et al v. DeMarco et al

Filing 428

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; Judge Brown's R&R (Docket Entry 426) is ADOPTED in its entirety as modified by the Modification Order dated June 29, 2016. So Ordered by Judge Joanna Seybert on 8/29/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
RICKEY LYNCH, MACK BUTLER, KEVIN KING,
CLYDE LOFTON, PAUL ALVER, and DASHAUN
SIMS, on behalf of themselves and all
others similarly situated,
Plaintiffs,

MEMORANDUM & ORDER
11-CV-2602(JS)(GRB)

- against SUFFOLK COUNTY, VINCENT F. DEMARCO,
in his individual and official capacity,
JOSEPH T. CARCAPPA, in his individual
and official capacity, and JOHN P.
MEYERRICKS, in his individual and
official capacity,
Defendants.
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APPEARANCES
For Plaintiffs:
Daniel Hector Rees LaGuardia, Esq.
Alexis Scott Berkowitz, Esq.
Edward Garth Timlin, Esq.
Elizabeth Francoise Johnson, Esq.
Melissa Jane Godwin, Esq.
Sheila Jain, Esq.
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022
Anthony J. Licatesi, Esq.
Rubin & Licatesi P.C.
591 Stewart Avenue
Garden City, NY 11530
Erin B. Harrist, Esq.
New York Civil Liberties Union
125 Broad Street, 19th Floor
New York, NY 10004
For Defendants:

Brian C. Mitchell, Esq.
Arlene S. Zwilling, Esq.
Suffolk County Attorney
100 Veterans Memorial Highway
Hauppauge, NY 11788

SEYBERT, District Judge:
Pending before the Court is Magistrate Judge Gary R.
Brown’s Report and Recommendation (“R&R”), recommending that this
Court: (1) grant the motion to approve class notice and plan of
notice filed by plaintiffs Rickey Lynch, Mack Butler, Kevin King,
Clyde Lofton, Paul Alver, and Dashaun Sims, on behalf of themselves
and all others similarly situated (collectively, “Plaintiffs”),
and (2) grant the cross motion filed by defendants Suffolk County,
Vincent F. DeMarco, Joseph T. Carrappa, and John P. Meyerricks
(collectively, “Defendants”) to amend the class definitions set
forth in the Court’s Memorandum and Order dated March 19, 2013.
(R&R, Docket Entry 426, at 1.)

For the following reasons, the

Court ADOPTS Judge Brown’s R&R in its entirety as modified by Judge
Brown’s Electronic Order dated June 29, 2016.
BACKGROUND
The

Court

assumes

familiarity

with

the

factual

and

procedural background of this matter, which is set forth in detail
in its Memorandum and Order dated March 19, 2013 (the “March
Order”).
2013).

See Butler v. Suffolk Cty., 289 F.R.D. 80, 87 (E.D.N.Y.
In

Plaintiffs’

the

March

motion

for

Order,
class

the

Court,

inter

certification

and

alia,

certified

following classes and subclasses:
(1) [A]n Injunctive Class comprised of all
persons who, now or at any time in the future,
are or will be detainees or prisoners in the
2

granted
the

custody of the Suffolk County Sheriff’s
Department and housed in the SCCF [Suffolk
County Correctional Facility], with separate
subclasses for those persons detained in
Riverhead and Yaphank; and
(2) [A] Damages Class comprised of all persons
who are or were detainees or prisoners in the
custody of the Suffolk County Sheriff’s
Department and housed in the SCCF and who were
or will be released from the SCCF on or after
April 5, 2009, with separate subclasses for
those persons detained in Riverhead and
Yaphank.
Butler, 289 F.R.D. at 103.
On February 10, 2016, Plaintiffs filed a motion to
approve class notice and plan of notice pursuant to Federal Rule
of Civil Procedure 23(c).
2016,

Defendants

filed

(Docket Entry 422.)
a

cross

motion

to

On February 22,
amend

the

class

definitions set forth in the March Order to exclude all Suffolk
County Correctional Facility inmates “who were or have been housed
exclusively at the new jail facility in Yaphank, New York.”
(Docket Entry 424.)
On April 12, 2016, the undersigned referred the pending
motions to Judge Brown for an R&R on whether the motions should be
granted.

(Docket Entry 425.)
On June 15, 2016, Judge Brown issued his R&R.

Entry 426.)

(Docket

The R&R recommends that Plaintiffs’ motion and

Defendants’ cross motion be granted, and that the Court approve
3

Plaintiffs’
Action.

proposed

alternative

Notice

of

Pendency

of

Class

(R&R at 11.)
On June 28, 2016, Plaintiffs filed a letter requesting

that the R&R be “minimally modified to clarify that Plaintiffs may
perform the mailing of class notice by standard first class mail,
rather than certified mail.”

(Pls.’ Ltr., Docket Entry 427, at

1.) Plaintiffs attached a proposed Order stating that the sentence
on page seven of the R&R that reads “Pursuant to Settlement
Services’

recommendation,

plaintiffs

propose

that

the

Notice

packets be distributed to class members via first class certified
mail”

is

modified

to

read

“Pursuant

to

Settlement

Services’

recommendation, plaintiffs propose that the Notice packets be
distributed to class members via first class mail.”

(Pls.’

Proposed Order, Docket Entry 427-1 (emphasis supplied).)

On

June 29, 2016, Judge Brown granted Plaintiffs’ request to modify
page seven of the R&R (the “Modification Order”).
DISCUSSION
In reviewing an R&R, a district court “may accept,
reject,

or

modify,

recommendations

made

in
by

whole
the

or

in

part,

magistrate

the

judge.”

findings
28

and

U.S.C.

§ 636(b)(1)(C). If no timely objections have been made, the “court
need only satisfy itself 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) (internal quotation marks and citation omitted).
4

Objections were due within fourteen (14) days of service
of the R&R.

The time for filing objections has expired, and no

party has objected.

Accordingly, all objections are hereby deemed

to have been waived.
Upon careful review and consideration, the Court finds
Judge Brown’s R&R to be comprehensive, well-reasoned, and free of
clear error, and it ADOPTS the R&R in its entirety as modified by
the Modification Order. Pursuant to the Modification Order, notice
packets shall be distributed to class members by first class mail.
(See Pls.’ Proposed Order.)
CONCLUSION
Judge Brown’s R&R (Docket Entry 426) is ADOPTED in its
entirety as modified by the Modification Order dated June 29, 2016.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

August
29 , 2016
Central Islip, New York

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