Reid v. Nassau County Sheriff Dept. et al

Filing 514

ORDER ADOPTING REPORT AND RECOMMENDATIONS - For the reasons set forth herein, so much of Magistrate Judge Locke's Report as recommends that defendants' motion for judgment on the pleadings as to Williams, and the County's and Sposato&# 039;s motion to dismiss the claims of McClendon, be granted without prejudice and with leave to re-plead to the extent set forth therein is accepted in its entirety and, for the reasons set forth therein, defendants' motion for judgment on the p leadings as to Williams, and the County's ans Sposato's motion to dismiss the claims of McClen, are granted and Williams's and McClendon's claims in their original complaints are dismissed in their entirety without prejudice and w ith leave to re-plead in accordance with the Report. McClendon must file an amended complaint in accordance with the Report by no later than 6/11/2018, or he will be deemed to have waived his right to file an amended complaint and his claims in this consolidated action will be dismissed in their entirety with prejudice. Accordingly, the pretrial conference scheduled to be held before the undersigned on 5/14/2018 is adjourned to 7/19/2018 at 11:15AM in Courtroom 1010 at the Central Islip Courthou se, located at 100 Federal Plaza, Central Islip, New York 11722. Pursuant to Rule 77(d)(1) of the Federal Rules of Civil Procedure, the Clerk of the Court is directed to serve notice of entry of this order upon all remaining parties to the consolidat ed action, including Williams and McClendon, in accordance with Rule 5(b) of the Federal 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. SO Ordered by Judge Sandra J. Feuerstein on 5/10/2018. (Tirado, Chelsea)

FILED 
CLERK 

4:44 pm, May 10, 2018

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOVANY HENRIUS, et al.
Plaintiffs,

ORDER
13-CV-1192 (SJF)(SIL)

-against“JOHN DOE,” Superintendent of Nassau
County Jails, et al.,
Defendants.
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FEUERSTEIN, District Judge:

Pending before the Court is the Order, Report and Recommendation of the Honorable
Steven I. Locke, United States Magistrate Judge, dated February 15, 2018 (“the Report”), inter
alia, (1) recommending that defendants’ motion pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure for judgment on the pleadings as to consolidated plaintiff Sharod Williams
(“Williams”), and the motion of defendants County of Nassau (the “County”) and Michael J.
Sposato (“Sposato’) to dismiss the claims of consolidated plaintiff Charles McClendon
(“McClendon”) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, be granted
without prejudice and with leave to re-plead to the extent set forth therein1; and (2) advising,
inter alia, (a) that “[a]ny objections to th[e] Report . . . must be filed with the Clerk of the Court
within fourteen (14) days of receipt of th[e] report[,]” (Report at 24), and (b) that a “[f]ailure to
file objections within the specified time waives the right to appeal the District Court’s order.”

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Since, by order dated May 9, 2018, the claims of consolidated plaintiff David C.
Knudson (“Knudson”) were dismissed in their entirety with prejudice pursuant to Rule 41(b) of
the Federal Rules of Civil Procedure for failure to prosecute, so much of the Report as
recommends that the County’s and Sposato’s motion for judgment on the pleadings as to
Knudson be granted in part and denied in part is moot.
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(Id.) (citing 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a); Ferrer v. Woliver, No. 05-3696, 2008
WL 4951035, at * 2 (2d Cir. Nov. 20, 2008); Beverly v. Walker, 118 F.3d 900, 902 (2d Cir.
1997); and Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996)). Pursuant to the Report,
defendants served the Report upon Williams, Knudson and McClendon by mailing copies thereof
to each of them at their address of record on February 16, 2018. (See Docket Entry [“DE”] 491).
After the mailing to McClendon was returned to defendants as undeliverable, and McClendon
subsequently filed a notice of change of address on March 12, 2018, (see DE 502), defendants
again served, inter alia, the Report upon McClendon by mailing a copy thereof to him at his new
address of record on March 23, 2018. (See DE 503).
No party has filed any timely objections to the Report, nor sought an extension of time to
do so. Indeed, by letter dated February 20, 2018, counsel for defendants indicated, inter alia, that
“defendants do not intend to file objections” to the Report. (DE 493). For the reasons set forth
below, so much of Magistrate Judge Locke’s Report as recommends that defendants’ motion for
judgment on the pleadings as to Williams, and the County’s and Sposato’s motion to dismiss the
claims of McClendon, be granted without prejudice and with leave to re-plead to the extent set
forth therein is accepted in its entirety.

I.

DISCUSSION
A.

Standard of Review

Any party may serve and file written objections to a report and recommendation of a
magistrate judge on a dispositive matter within fourteen (14) days after being served with a copy
thereof. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Any portion of such a report and
recommendation to which a timely objection has been made is reviewed de novo. 28 U.S.C. §

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636(b)(1); Fed. R. Civ. P. 72(b)(3). The court, however, 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. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985).
Where a party “received clear notice of the consequences of the failure to object” to a report and
recommendation on a dispositive matter, Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992)
(quotations and citation omitted); accord Small v. Secretary of Health and Human Svcs., 892
F.2d 15, 16 (2d Cir. 1989), his “failure to object timely to [that] report waives any further judicial
review of the report.” Frank, 968 F.2d at 16; see also Smith v. Campbell, 782 F.3d 93, 102 (2d
Cir. 2015); Caidor v. Onondago County, 517 F.3d 601, 604 (2d Cir. 2008).
Nonetheless, the waiver rule is “nonjurisdictional” and, thus, the Court may excuse a
violation thereof “in the interests of justice.” King v. City of New York, Dep’t of Corr., 419 F.
App’x 25, 27 (2d Cir. Apr. 4, 2011) (summary order) (quoting Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993)); see also DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. 2000). “Such discretion is
exercised based on, among other factors, whether the defaulted argument has substantial merit or,
put otherwise, whether the magistrate judge committed plain error in ruling against the defaulting
party.” Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir.
2000); accord Maitland v. Fishbein, 712 F. App’x 90, 92 (2d Cir. Feb. 26, 2018) (summary
order).

B.

Review of Report

Since no party has filed any timely objections to Magistrate Judge Locke’s Report, nor
sought an extension of time to do so, they have “waive[d] any further judicial review of the
findings contained in the [R]eport.” Spence, 219 F.3d at 174. Moreover, as the Report is not

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plainly erroneous, the Court will not exercise its discretion to excuse the parties’ default in filing
timely objections to the Report in the interests of justice. Accordingly, the Report is accepted in
its entirety and, for the reasons set forth therein, defendants’ motion for judgment on the
pleadings as to Williams, and the County’s and Sposato’s motion to dismiss the claims of
McClendon, are granted and Williams’s and McClendon’s claims in their original complaints are
dismissed in their entirety without prejudice and with leave to re-plead in accordance with the
Report.
Although Williams filed an amended complaint on April 6, 2018, and again on May 3,
2018, McClendon has not filed an amended complaint to date. McClendon must file an amended
complaint in accordance with the Report by no later than June 11, 2018, or he will be deemed
to have waived his right to file an amended complaint and his claims in this consolidated action
will be dismissed in their entirety with prejudice.

II.

CONCLUSION
For the reasons set forth herein, so much of Magistrate Judge Locke’s Report as

recommends that defendants’ motion for judgment on the pleadings as to Williams, and the
County’s and Sposato’s motion to dismiss the claims of McClendon, be granted without
prejudice and with leave to re-plead to the extent set forth therein is accepted in its entirety and,
for the reasons set forth therein, defendants’ motion for judgment on the pleadings as to
Williams, and the County’s and Sposato’s motion to dismiss the claims of McClendon, are
granted and Williams’s and McClendon’s claims in their original complaints are dismissed in
their entirety without prejudice and with leave to re-plead in accordance with the Report.
McClendon must file an amended complaint in accordance with the Report by no later than

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June 11, 2018, or he will be deemed to have waived his right to file an amended complaint and
his claims in this consolidated action will be dismissed in their entirety with prejudice.
Accordingly, the pretrial conference scheduled to be held before the undersigned on May 14,
2018 is adjourned to July 19, 2018 at 11:15 a.m. in Courtroom 1010 at the Central Islip
Courthouse, located at 100 Federal Plaza, Central Islip, New York 11722.
Pursuant to Rule 77(d)(1) of the Federal Rules of Civil Procedure, the Clerk of the Court
is directed to serve notice of entry of this order upon all remaining parties to the consolidated
action, including Williams and McClendon, in accordance with Rule 5(b) of the Federal 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, 82 S. Ct. 917, 8 L. Ed. 2d
21 (1962).

SO ORDERED.
/s/
SANDRA J. FEUERSTEIN
United States District Judge
Dated: May 10, 2018
Central Islip, New York

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