Hicks v. 1199 SEIU Healthcare Worker East

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATIONS: SO ORDERED that Magistrate Judge Lindsay's Report is accepted in its entirety and plaintiff's claims are dismissed in their entirety with prejudice as time barred. The Clerk of the Court shall clo se this case and, pursuant to Rule 77(d)(l) of the Federal Rules of Civil Procedure, serve notice of entry of this Order upon all parties as provided in Rule 5(b) of the Federal Rules of Civil Procedure and record such service on the docket. The Cour t 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. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 1/20/2015. (Florio, Lisa)

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FILED
IN CLERK'S OFFICE
U S DISTRICT COURT E 0 N y

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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DESIRA Y RA YLITA HICKS,

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JAN 2 ::; Z015

LONG ISLAND OFFICE
Plaintiff,
ORDER
14-CV-3337(SJF)(ARL)

-against1199 SEIU UNITED HEALTHCARE WORKER EAST,
Defendant.

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FEUERSTEIN, District Judge:

Pending before the Court is the Report and Recommendation ("the Report") of the
Honorable Arlene R. Lindsay, United States Magistrate Judge, dated December 15,2014: (I)
recommending (a) that the application of prose plaintiffDesiray Raylita Hicks ("plaintiff') to
remand this action to state court be denied, and (b) that the branch of the motion of defendant 1199
SEIU United Healthcare Worker East ("defendant") seeking dismissal of plaintiffs claims in their
entirety as barred by the statute of! imitations be granted; (2) advising plaintiff(a) that "[a]ny
objections to th[e] Report

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* * * must be electronically filed with the Clerk of the Court * * * within

14 days[,]" (Report at 8), and (b) that a "[f]ailure to file objections within th[e] [fourteen (14)-day]
period waives the right to appeal the District Court's Order[,]" (id.) (citing 28 U.S.C. § 636(b)(l);
Fed. R. Civ. P. 72; Wagner & Wagner. LLP v. Atkinson. Haskins. Nellis. Brittingham. Gladd &
Carwile. P.C., 596 F.3d 84,92 (2d Cir. 2010); Beverly v. Walker, 118 F.3d 900,902 (2d Cir. 1997);
and Savoie v. Merchants Bank, 84 F .3d 52, 60 (2d Cir. 1996)); and (3) directing defendant to serve
plaintiff with a copy of the Report, (Docket Entry ["DE"] 15). Defendant served a copy of the
Report upon plaintiff by mailing a true copy thereof to her last known address on December 17,
2014. (DE 16). Plaintiff has not filed any objections to the Report, nor sought an extension of time
to do so. For the reasons stated herein and in the Report, Magistrate Judge Lindsay's Report is
accepted in its entirety and plaintiffs claims are dismissed in their entirety as time-barred.

I

.I.

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. §
636(b)(l); 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. Am. 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Specifically, where,
as here, 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), his "failure to object timely to [that] report waives any further
judicial review of the report." Id.; see also Caidor v. Onondago Countv, 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 prose litigants, it is 'a nonjurisdictional
waiver provision whose violation [the Court] may excuse in the interests of justice."' King v. City of
New York. Department of Corrections, 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 Correctional Facility, 219 F.3d 162, 174 (2d Cir.
2000); ~also King. 419 F. App'x at 27 (accord).

II.

Review of Report
Although the Report provided plaintiff with the requisite "express warning" of the

consequences of a failure to timely file objections thereto, Caidor, 517 F .3d at 603, plaintiff has not
filed any objections to Magistrate Judge Lindsay's Report, nor sought an extension of time to do so.

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.Accordingly, plaintiff has "waive(d) any further judicial review of the findings contained in the
report." Spence, 219 F.3d at 174. Moreover, as the Report is not plainly erroneous, the Court will
not exercise its discretion to excuse plaintiff's default in filing timely objections to the Report in the
interests ofjustice. Accordingly, the Report is accepted in its entirety and plaintiff's claims are
dismissed in their entirety as time-barred.

III.

Conclusion
For the reasons set forth herein and in the Report, Magistrate Judge Lindsay's Report is

accepted in its entirety and plaintiff's claims are dismissed in their entirety with prejudice as timebarred. The Clerk of the Court shall close this case and, pursuant to Rule 77(d)(l) of the Federal
Rules of Civil Procedure, serve notice of entry of this Order upon all parties as provided in Rule 5(b)
of the Federal Rules of Civil Procedure and record such service on the docket.
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 Copoedge 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
Sandra J. Feuerstein
United States District Judge

Dated: January 20, 2015
Central Islip, New York

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