Bristol et al v. Probation Department of Nassau County et al

Filing 89

ORDER ADOPTING REPORT AND RECOMMENDATIONS : motion to dismiss filed by defendants Nassau County and Edwards Schenk (ECF. No 80) is granted in part and denied in part. Specifically, the motion is granted as to alleged violations of plaintiffs double j eopardy rights, procedural due process rights related to the 2008 seizure of his property, procedural due process rights related to his return to and re-incarceration at NCCC, his false imprisonment claim, and any claims against any individual defend ants with the exception of Edward Schenk. Further, plaintiff is not entitled to re-plead any of these claims, and, thus, these claims are dismissed with prejudice. The motion is denied as to plaintiffs Eighth Amendment conditions of confinement claim and due process claim relating to the 2013 retention of plaintiffs funds, which may proceed. IT IS FURTHER ORDERED that defendants serve a copy of this Order on plaintiff.Ordered by Judge Joseph F. Bianco on 3/12/2019. (Bollbach, Jean)cm by chambers

FILED

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.

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*

MARCEL C. BRISTOL,

LONG ISLAND OFFICE

MAR 12 2019

*

Plaintiff,
ORDER
14-CV-6647 (JFB)(AKT)

-againstEDWARD SCHENK
and COUNTY OF NASSAU,
Defendants.

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JOSEPH F. BIANCO, District Judge:
On February 15, 2019, Magistrate Judge Tomlinson issued a Report and
Recommendation (the "R&R," ECF No. 87) recommending that the Court grant in part and deny
in part the motion for judgment on the pleadings filed by defendants Nassau County and Edward
Schenk. 1 (ECF. No 80). The R&R was served on plaintiff by mail on February 19, 2019. (ECF
No. 88.) The R&R instructed that any objections to the R&R be submitted within fourteen (14)
days of service of the R&R, with three days each for service and filing by mail, i.e., by March
11, 2019. (R&R at 24.) The date for filing any objections has thus expired, and no party has
filed any objection to the R&R. For the reasons set forth below, the Court adopts the thorough
and well-reasoned R&R in its entirety, granting in part and denying in part the motion for
judgment on the pleadings filed by defendants Nassau County and Edward Schenk. In particular,

1

The Court notes that, in summarizing this Court's March 8, 2016 Memorandum and Order, the R&R correctly
construed this Court's decision to hold, liberally construing the plaintiffs allegations, that plaintiff had plausibly pied
an Eighth Amendment violation against the County of Nassau with respect to the conditions of confinement, including
a pattern and practice of subjecting the plaintiff (and other inmates) to the allegedly unconstitutional conditions. The
R&R also correctly summarized all other portions of the Court's prior decision in this case.

the motion is granted as to alleged violations of plaintiffs double jeopardy rights, procedural due
process rights related to the 2008 seizure of his property, procedural due process rights related to
his return to and re-incarceration at NCCC, his false imprisonment claim, and any claims against
any individual defendants with the exception of Edward Schenk. Further, plaintiff is not entitled
to re-plead any of these claims, and, thus, these claims are dismissed with prejudice. The motion
is denied as to plaintiffs Eighth Amendment conditions of confinement claim and due process
claim relating to the 2013 retention of plaintiffs funds, which may proceed.
Where there are no objections to a report and recommendation issued by a magistrate
judge, the Court may adopt the report and recommendation without de novo review. See Thomas
v. Arn, 4 74 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, 4 74 U.S.
at 155)).

Although the parties have waived any objection to the R&R and thus de novo review is
not required, the Court has conducted a de novo review of the R&R in an abundance of caution.

Having conducted a review of the Complaint, the motion papers, and the applicable law, and
having reviewed the R&R de novo, the Court adopts the analysis and recommendations
contained in the well-reasoned and thorough R&R in their entirety. Accordingly,

IT IS HEREBY ORDERED that the motion to dismiss filed by defendants Nassau
County and Edwards Schenk (ECF. No 80) is granted in part and denied in part. Specifically, the
motion is granted as to alleged violations of plaintiffs double jeopardy rights, procedural due
process rights related to the 2008 seizure of his property, procedural due process rights related to
his return to and re-incarceration at NCCC, his false imprisonment claim, and any claims against
any individual defendants with the exception of Edward Schenk. Further, plaintiff is not entitled
to re-plead any of these claims, and, thus, these claims are dismissed with prejudice. The motion
is denied as to plaintiffs Eighth Amendment conditions of confinement claim and due process
claim relating to the 2013 retention of plaintiffs funds, which may proceed.
IT IS FURTHER ORDERED that defendants serve a copy of this Order on plaintiff.

s~o/
SI JOSEPH F BIANCO

i</>~ F.-HIANCO

.......______
ttP4ITED STATES DISTRICT JUDGE

Dated:

March 12, 2019
Central Islip, NY