James v. SCCF et al

Filing 97

ORDER granting 82 Motion for Summary Judgment; denying 85 Motion to Amend/Correct/Supplement; ORDER ADOPTING REPORT AND RECOMMENDATIONS - Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for leave to file a second amended complain t (Docket No. 85 ) is denied, defendants' motion for summary judgment (Docket No. 82 ) is granted, and plaintiff's amended complaint is dismissed with prejudice. The Clerk of Court shall enter judgment accordingly and close this case. The Court also 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. IT IS FURTHER ORDERED that counsel for defendants shall serve a copy of this Order on plaintiff and file proof of service with the Court. SO Ordered by Judge Joseph F. Bianco on 8/17/2018. (Tirado, Chelsea)

FI LED
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
TRAVIS JAMES,

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AUG 17 2018

LONG ISLAND OFFICE

Plaintiff,
ORDER
13-CV-2344 (JFB) (SIL)

-againstSUFFOLK COUNTY CORRECTIONAL
FACILITY, et al.,
Defendants.

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JOSEPH F. BIANCO, District Judge:
On June 26, 2018, Magistrate Judge Steven I. Locke issued a Report and
Recommendation ("R&R," Dkt. No. 95), recommending that the motion for leave to file a
second amended complaint filed by pro se plaintiff Travis James ("plaintiff') be denied, the
motion for summary judgment filed by defendants Suffolk County Sheriff Vincent DeMarco and
Suffolk County ("defendants") be granted, and plaintiff's amended complaint be dismissed with
prejudice. The R&R was served on plaintiff on July 6, 2018.

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(Dkt. No. 96.) 1 The R&R

The Court notes that, although defendants' certificate of service reflects that the R&R was served on plaintiff at his
address of record at Orleans Correctional Facility (Dkt. No. 96), it appears that plaintiff was released from that
facility on parole on January 8, 2018 (see Dkt. No. 94 (returning the Court's April 6, 2018 Order referring these
motions to Judge Locke as undeliverable, with the envelope marked "Return to Sender," "Attempted - Not Known,"
"Unable to Forward," and "parole 1/8/18")); see also New York State Department of Corrections and Community
Supervision, Inmate Information, nysdoccslookup.doccs.ny.gov (providing that plaintiff was released from Orleans
Correctional Facility on January 8, 2018, on "Parole - Cond Rel to Parole"). However, it is plaintiffs responsibility
to keep the Court apprised of his current address-a responsibility that plaintiff was advised of at the beginning of
this case (see Dkt. No. 6), and that plaintiff apparently understood, having submitted multiple notices of change of
address to the Court over the course of the litigation (see Dkt. Nos. 28, 29, 34, 35, 45, 65)-and plaintiff failed to do
so here. See Alomar v. Recard, No. 07-CV-5654 (CS)(PED), 2010 WL 451047, at *2 (S.D.N.Y. Feb. 9, 2010) ("The
duty to inform the Court and defendants of any change of address is 'an obligation that rests with all pro se
plaintiffs."' (quoting Handlin v. Garvey, No. 91 Civ. 6777 (AGS), 1996 WL 673823, at *5 (S.D.N.Y. Nov. 20,
1996))); Garner v. Owens, No. 08-CV-222 (CBA)(LB), 2008 WL 5191908, at *2 (E.D.N.Y. Dec. 9, 2008) ("When a
party changes addresses, it is his or her obligation to notify the Court of the new address."); Sims v. Fernandez, No.
03 Civ. 2997 (KMW) (OF), 2004 U.S. Dist. LEXIS 6108, at *4 (S.D.N.Y. Mar. 16, 2004) ("[I]t is the plaintiffs
responsibility to keep the Court informed of his current address, and failure to do so may justify dismissal for failure
to prosecute."). In any event, plaintiff submitted a declaration in response to defendants' motion for summary
judgment (see 0kt. No. 91 ), and the Court has conducted a de novo review of the R&R and would independently
reach the same result for the reasons set forth in the R&R.

instructed that any objections to the R&R be submitted within fourteen days of its receipt. (R&R
at 35.) The date for filing any objections has thus expired, and no party has filed an objection to
the R&R. For the reason set forth below, the Court adopts the thorough and well-reasoned R&R
in its entirety.
Where there are no objections, the Court may adopt a 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."); cf 28 U.S.C. § 636(b)(l)(c) and
Fed. R. Civ. P. 72(b)(3) (requiring de novo review after objections). However, because the
failure to file timely objections is not jurisdictional, a district judge may 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 party has objected to the R&R, the Court has conducted a de novo review of
the R&R in an abundance of caution. Having conducted a review of the record and applicable
law, and having reviewed the R&R de novo, the Court adopts the thorough and well-reasoned
R&R in its entirety.
Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for leave to file a second
amended complaint (0kt. No. 85) is denied, defendants' motion for summary judgment (0kt.

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No. 82) is granted, and plaintiffs amended complaint is dismissed with prejudice. The Clerk of
the Court shall enter judgment accordingly and close the case. The Court also 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 (1962).
IT IS FURTHER ORDERED that counsel for defendants shall serve a copy of this Order
on plaintiff and file proof of service with the Court.
SO ORDERED.
I\
t.
/
s/ Joseph F. Bianco
o eph F. Bianco
ited States District Judge
Dated: August 17, 2018
Central Islip, New York

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