People of the State of New York v. Suffolk County

Filing 33

ORDER ADOPTING REPORT AND RECOMMENDATIONS: IT IS HEREBY ORDERED that the federal defendants' motions to dismiss plaintiffs claims against them are granted with prejudice, and the County's motion to dismiss is granted without prejudice. Pl aintiff is given leave to replead his claims against the County consistent with Judge Shields's R&R. The amended complaint must be filed with the Court by April 24, 2017. Failure to file the amended complaint may result in dismissal of the case against the County with prejudice for failure to prosecute. Given the absence of a plausible federal claim at this juncture, the Court declines to exercise supplemental jurisdiction over the state law claims against the County. The Court certifies pu rsuant 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. Ordered by Judge Joseph F. Bianco on 3/201/2017. (Bollbach, Jean)cm by chambers to pro se by fcm on 3/20/17

FILED

IN CLERK'S OFFI""'E

u.s. DISTRICT COUR"f E.D.N. Y.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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TERRELL CLARK, ET AL.,

*

MAR 20 2017

*

LONG ISLAND OFFICE

Plaintiffs,
ORDER
14-CV-7195 (JFB)(AYS)

-againstSUFFOLK COUNTY, ET AL.,
Defendants.

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JOSEPH F. BIANCO, District Judge:

Before the Court is a Report and Recommendation ("R&R," ECF No. 30) from Magistrate
Judge Shields recommending that the Court grant the motions to dismiss filed by defendants
Suffolk County (the "County"), the United States Department of Justice, Forfeiture Counsel, and
the Drug Enforcement Administration (the "DEA") (collectively, the "federal defendants") (ECF
Nos. 18, 24). The R&R instructed that any objections to the R&R be submitted within fourteen
(14) days of service of the R&R. (See R&R, dated February 24, 2017, at 19.) Defendants served
the R&R on plaintiff on February 28,2017 (see ECF No. 32), and the date for filing any objections
has accordingly since expired. Plaintiff has not filed any objections to the R&R. For the reasons
set forth below, the Court adopts the thorough and well-reasoned R&R in its entirety and (1) grants
the federal defendants' motions to dismiss plaintiffs claims against them with prejudice, and (2)
grants the County's motion to dismiss, but with leave to re-plead. Given th~ absence of a plausible
federal claim at this juncture, the Court declines to exercise supplemental jurisdiction over the
state law claims against the County.
Where there are no objections, the Court may adopt the 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 fmdings. "); 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."); cj 28 U.S.C. § 636(b)(1)(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 ofjustice.'" (quoting Thomas,
474 U.S. at 155)).
Although plaintiff has waived any objections 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 full record and the applicable law, and having reviewed the
R&R de novo, the Court adopts the findings and recommendations contained in the well-reasoned
and thorough R&R in their entirety.

Accordingly, IT IS HEREBY ORDERED that the federal

defendants' motions to dismiss plaintiffs claims against them are granted with prejudice, and the
County's motion to dismiss is granted without prejudice. Plaintiff is given leave to replead his
claims against the County consistent with Judge Shields's R&R. The amended complaint must be
filed with the Court by April 24, 2017. Failure to file the amended complaint may result in
dismissal of the case against the County with prejudice for failure to prosecute. Given the absence
of a plausible federal claim at this juncture, the Court declines to exercise supplemental jurisdiction
over the state law claims against the County.

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 (1962).

SO~D.
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Joe h . 1anco
· ed States District Judge
· Dated:

March 20, 2017
Central Islip, New York