Conway v. Board of Education of Northport East Northport School District et al

Filing 52

OPINION & ORDER: SO ORDERED that Magistrate Judge Shields ultimately applied the correct standard in reviewing defts motion for summary judgment and recommending that it be granted. As there are no other plain errors on the face of the Report affecti ng the findings and conclusions reached by Magistrate Judge Shields therein, the remainder of the Report is accepted in its entirety and, for the reasons set forth therein, defts motion seeking summary judgment dismissing plaintiffs claims in this ac tion in their entirety pursuant to Rule 56 of the Federal Rules of Civil Procedure is granted and plaintiffs claims are dismissed in their entirety with prejudice for her failure to exhaust administrative remedies. The Clerk of the Court shall enter judgment in favor of defendants and close this case. Ordered by Judge Sandra J. Feuerstein on 1/8/2016. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MONA CONWAY, Individually and on behalf of
her son Kane Conway Goldgell, a child with a
disability and those similarly situated,

FILED 
CLERK 

1/8/2016 12:36 pm

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

Plaintiffs,
- against-

OPINION AND ORDER
13-CV-5283 (SJF)(AYS)

BOARD OF EDUCATION OF NORTHPORTEAST NORTHPORT SCHOOL DISTRICT,
MARYLOU MCDERMOTT, in her individual
and official capacity as Superintendent of Schools,
CHRISTINA PULASKI, in her individual and
official capacity as Director of Special Education,
IRENE McLAUGHLIN, in her individual and
official capacity as Principal of Northport High
School, DENISE KEENAN, in her individual and
official capacity as Vice Principal, TERRENCE
HINSON, in his individual and official capacity as
Chairperson of Guidance, and REGINA THOMAS,
in her individual and official capacity as Guidance
Counselor,
Defendants.
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FEUERSTEIN, District Judge:
Pending before the Court is a Report and Recommendation (“the Report”) of the
Honorable Anne Y. Shields, United States Magistrate Judge, dated December 17, 2015,
recommending that the motion of defendants Board of Education of Northport-East Northport
School District; Marylou McDermott, in her individual and official capacity as superintendent of
schools; Christina Pulaski, in her individual and official capacity as director of special education;
Irene McLaughlin, in her individual and official capacity as principal of Northport High School;
Denise Keenan, in her individual and official capacity as vice principal; Terrence Hinson, in his
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individual and official capacity as chairperson of guidance; and Regina Thomas, in her individual
and official capacity as guidance counselor (collectively, “defendants”) seeking summary
judgment dismissing plaintiff’s claims in this action in their entirety pursuant to Rule 56 of the
Federal Rules of Civil Procedure be granted for her failure to exhaust administrative remedies.
No party has filed any objections to the Report, nor sought an extension of time to do so. For the
reasons stated herein, the Report is modified as set forth herein and, as modified, is accepted in
its entirety.

I.

Standard of Review
Any party may serve and file written objections to a report and recommendation of a

magistrate judge 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. § 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); Wagner & Wagner, LLP v. Atkinson,
Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010) (“[A] party
waives [judicial] review of a decision in a magistrate judge’s report and recommendation if the
party fails to file timely objections designating the particular issue.”) Specifically, where, as
here, the parties “received clear notice of the consequences of the failure to object” to a report
and recommendation, (see Report at 28), their “failure to object timely to [that] report waives
any further judicial review of the report.” Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992)
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(quotations and citation omitted); see also Caidor v. Onondago County, 517 F.3d 601, 604 (2d
Cir. 2008); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993).
“Although this rule applies equally to counseled and pro se litigants, it is ‘a
nonjurisdictional waiver provision whose violation [the Court] may excuse 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)
(quoting Roldan, 984 F.2d at 89); 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 King, 419 F. App’x at 27.
Whether or not proper objections have been filed, the district judge may, after review,
inter alia, accept, reject, or modify any of the magistrate judge’s findings or recommendations.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

II.

The Report
Although the Report provided the parties with the requisite “express warning” of the

consequences of a failure to timely file objections thereto, Caidor, 517 F.3d at 603, plaintiff has
neither filed any objections to Magistrate Judge Shields’s Report, nor sought an extension of
time to do so. Accordingly, plaintiff has “waive[d] any further judicial review of the findings
contained in the [R]eport.” Spence, 219 F.3d at 174.
However, so much of the Report as cites to, inter alia, former Rule 56(c) of the Federal
Rules of Civil Procedure in setting forth the standard of review on a motion for summary
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judgment is rejected. Presently, Rule 56(a) of the Federal Rules of Civil Procedure prescribes the
standard of review on a motion for summary judgment that was previously expressed in former
Rule 56(c).
Nonetheless, the standard of review on a motion for summary judgment remains the
same. See Fed. R. Civ. P. 56(a), advisory committee’s notes to 2010 amendment (“Subdivision
(a) carries forward the summary-judgment [sic] standard expressed in former subdivision (c),
changing only one word– genuine ‘issue’ becomes genuine ‘dispute.’ ‘Dispute’ better reflects the
focus of a summary-judgment [sic] determination.”) Specifically, Rule 56(a) provides, in
relevant part, that summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Current Rule 56(c)(1) of the Federal Rules of Civil Procedure provides, in
relevant part:
“[a] party asserting that a fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations. . . , admissions, interrogatory answers, or other
materials; or (B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1). Accordingly, Magistrate Judge Shields ultimately applied the correct
standard in reviewing defendants’ motion for summary judgment and recommending that it be
granted.
As there are no other plain errors on the face of the Report affecting the findings and
conclusions reached by Magistrate Judge Shields therein, the remainder of the Report is accepted
in its entirety and, for the reasons set forth therein, defendants’ motion seeking summary
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judgment dismissing plaintiff’s claims in this action in their entirety pursuant to Rule 56 of the
Federal Rules of Civil Procedure is granted and plaintiff’s claims are dismissed in their entirety
with prejudice for her failure to exhaust administrative remedies. The Clerk of the Court shall
enter judgment in favor of defendants and close this case.
SO ORDERED.
/s/
SANDRA J. FEUERSTEIN
United States District Judge
Dated: January 8, 2016
Central Islip, New York

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