Woolsey v. The County Government of Suffolk County, New York

Filing 100

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons set forth herein, although no objections have been filed and thus de novo review is not required, the Court, in an abundance of caution, has conducted a de novo review of the Report and Recom mendation and HEREBY ADOPTS the well-reasoned and thorough Report and Recommendation in its entirety. Accordingly, IT IS HEREBY ORDERED that the Federal Defendants, the Brookhaven Defendants, and the County Defendants motions to dismiss are granted. IT IS FURTHER ORDERED that, in accordance with the Report and Recommendation, leave to re-plead is denied because further amendment would be futile. Accordingly, the Second Amended Complaint is dismissed with prejudice. The Clerk of the Court enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/14/2014. cm to pltf by Chambers on 03/14/14 (Chipev, George)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CHARLES ROBERT WOOLSEY,
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Plaintiff,
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– against –
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THE COUNTY OF SUFFOLK, et al.,
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Defendants.
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JOSEPH F. BIANCO, District Judge:

ORDER
11-CV-4806 (JFB)(GRB)

On October 3, 2011, pro se plaintiff Charles Robert Woolsey (“plaintiff”) filed this action
against The Administration of the County Government of Suffolk County, New York, Jennifer K.
McNamara, Stephen Ballone, Steve Levy, Dianne Stuke, Angie M. Carpenter, Sheriff Vincent F.
DeMarco, Thomas J. Spota, James Burke, Richard Dormer, and Judith Pascale (the “County
Defendants”); the Town of Brookhaven, New York, and The Office of the Receiver of Taxes, Louis
J. Marcoccia (the “Brookhaven Defendants”); and The Administration Head of the Air National
Guard Aircraft, Michael B. Donley (the “Federal Defendant”). On February 17, 2012, plaintiff filed
an amended complaint. (Docket No. 23.) On March 22, 2013, this Court granted the County
Defendants’ and the Brookhaven Defendants’ motions to dismiss, with leave to re-plead only as to
the actions described in paragraphs 70 and 76 of the amended complaint. (Docket No. 73.) On June
21, 2013, plaintiff filed a Second Amended Complaint (“SAC”). Defendants have once again moved
for dismissal. By Orders dated June 27, 2013, and October 7, 2013, this Court referred the motions
to dismiss to Magistrate Judge Brown for a Report and Recommendation.
On February 25, 2014, Magistrate Judge Brown issued a Report and Recommendation (the
“R&R”), recommending that the SAC be dismissed with prejudice. Magistrate Judge Brown
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reasoned, inter alia, that (1) plaintiff alleges no facts that support an inference that Donley was
personally involved in any of the incidents involving the Air National Guard and, therefore, could
not be vicariously liable for any violations; (2) plaintiff’s flyover claims were insufficiently pleaded;
(3) plaintiff failed to name the individual officers involved in the traffic stops as defendants, despite
being informed that he must do so in Magistrate Judge Brown’s Report and Recommendation dated
February 28, 2013, and he has failed to present plausible allegations of any Suffolk County policies
or customs that would have led to the purported violations; and (4) plaintiff makes no mention of
the Brookhaven Defendants in the body of the SAC. Magistrate Judge Brown also recommended
that leave to amend be denied because plaintiff has failed to allege anything arising to a valid claim
after filing three complaints in this matter, and, moreover, several of the claims are now time-barred
due to the insufficient pleading. Finally, the R&R instructed that any objections to the R&R be
submitted within fourteen (14) days of service of the R&R. (See Report and Recommendation, at
16.) As indicated by the docket sheet, a copy of the R&R was mailed to plaintiff by Magistrate
Judge Brown’s Chambers on February 25, 2014. (See ECF No. 70.) No objections have been filed
to date, although the date for filing any objections has expired.
A district judge may accept, reject, or modify, in whole or in part, the findings and
recommendations of the Magistrate Judge. See DeLuca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y.
1994); Walker v. Hood, 679 F. Supp. 372, 374 (S.D.N.Y. 1988). When a party submits a timely
objection to a report and recommendation, the district judge will review the parts of the report and
recommendation to which the party objected under a de novo standard of review. See 28 U.S.C.
§ 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.”); Fed. R.

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Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.”). Where clear notice has been given of the consequences of failure to object, and 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 & C Food Mkts., Inc.,
313 F.3d 758, 766 (2d Cir. 2002) (“Where parties receive clear notice of the 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.”). However, because the failure to file timely objections is not
jurisdictional, the district judge can 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 no objections have been filed and thus de novo review is not required, the Court,
in an abundance of caution, has conducted a de novo review of the Report and Recommendation and
HEREBY ADOPTS the well-reasoned and thorough Report and Recommendation in its entirety.
Accordingly, IT IS HEREBY ORDERED that the Federal Defendant’s, the Brookhaven
Defendants’, and the County Defendants’ motions to dismiss are granted. (See Docket Nos. 77, 94,
95.) IT IS FURTHER ORDERED that, in accordance with the Report and Recommendation, leave
to re-plead is denied because further amendment would be futile. Accordingly, the Second Amended

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Complaint is dismissed with prejudice. The Clerk of the Court enter judgment accordingly and close
the case.
SO ORDERED.

_________________________
JOSEPH F. BIANCO
UNITED STATES DISTRICT JUDGE

Dated:

March 14, 2014
Central Islip, NY

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