Jefferson v. Police Officer, Cope Unit 34 et al

Filing 27

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; For the foregoing reasons, the Court ADOPTS Judge Shields' R&R (Docket Entry 23) in its entirety. Defendants' motion to dismiss for lack of prosecution (Docket Entry 20) is DENIED WITHOUT PREJUDICE. The motions to dismiss pursuant to Rule 12 filed in the Consolidated Cases (No. 15-CV-2303, Docket Entry 9; No. 15-CV-2304, Docket Entry 9; and No. 15-CV-2305, Docket Entry 11) are DENIED WITHOUT PREJUDICE. Defendants' proposed briefing schedule for their renewed motion to dismiss the Consolidated Cases (see Docket Entry 25) is APPROVED. Defendants shall file and serve their motion to dismiss on or before April 3, 2017; Plaintiff shall file and serve his respon se on or before May 1, 2017; Defendants shall file and serve their reply, if any, on or before May 15, 2017. Plaintiff's claim against Officer Dubriske is DISMISSED WITH PREJUDICE and the Clerk of the Court is directed to TERMINATE Officer D ubriske as a defendant in this action. The Clerk of the Court is further directed to mail a copy of this Memorandum and Order to the pro se Plaintiff. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order w ould not be taken in good faith and therefore in forma pauperis status is DENIED for the purpose of any appeal. So Ordered by Judge Joanna Seybert on 3/7/2017. C/M; C/ECF Associated Cases: 2:15-cv-00544-JS-AYS, 2:15-cv-02303-JS-ARL, 2:15-cv-02304- JS-ARL, 2:15-cv-02305-JS-ARL (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
KEVIN L. JEFFERSON,
Plaintiff,

MEMORANDUM & ORDER
15-CV-0544(JS)(AYS)

-against–
COUNTY OF SUFFOLK, POLICE OFFICER ANDREW
DUBRISKE, POLICE OFFICER MICHAEL
UMBARILA, POLICE OFFICER DANIEL SALVATORE,
POLICE OFFICER JOHN WILLIAMS,
SERGEANT MIKE SMITH, VINCENT F. DEMARCO,
Suffolk Sherriff, POLICE OFFICER RYAN
KERLEY, and POLICE OFFICER FRED MIGNONE,
Defendants.
----------------------------------------X
APPEARANCES
For Plaintiff:
Kevin L. Jefferson, pro se
8 Candlewood Road
N. Bay Shore, NY 11706
For Defendants:

Brian C. Mitchell, Esq.
Suffolk County Attorney
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, NY 11788

Presently pending before the Court is Magistrate Judge
Anne Y. Shields’ Report and Recommendation dated February 10, 2017
(the

“R&R”)

recommending

that

this

Court:

(1)

deny

without

prejudice Defendants’ motion to dismiss the consolidated cases on
this

docket

for

failure

to

prosecute,

and

(2)

deny

without

prejudice the motions to dismiss pending under docket numbers
15-CV-2303, 15-CV-2304, and 15-CV-2305.

(R&R, Docket Entry 23.)

For the following reasons, the Court ADOPTS Judge Shields’ R&R in
its entirety.

BACKGROUND
The

Court

assumes

familiarity

with

the

factual

and

procedural background of this matter, which is set forth in detail
in the R&R.

Briefly, on February 4, 2015, Plaintiff commenced the

lead case in this matter under Docket Number 15-CV-0544 (the “Lead
Case”).
with

Plaintiff asserted claims pursuant to 42 U.S.C. § 1983

respect

Amendment

to

the

rights

in

deprivation
connection

of

his

with,

First

and

Fourteenth

inter

alia,

alleged

interference with his right to panhandle (the “Lead Case”).

(See

Compl. at 1-2.)
On January 15, 2016, the Court granted in part and denied
in part the motion to dismiss filed in the Lead Case (the “January
Order”).

(Jan. Order, Docket Entry 18, at 1.)

The Court held, in

relevant part, that Plaintiff’s claim against Officer Dubriske was
dismissed without prejudice and with leave to replead within thirty
(30) days of the date of the January Order.
To

date,

Plaintiff

has

not

repled

his

(Jan. Order at 26.)

claim

against

Officer

Dubriske.
Additionally, the Court sua sponte consolidated the Lead
Case with Plaintiff’s other lawsuits filed against the County of
Suffolk (the “County”), County police officers, and/or County
sheriffs, (see Docket Numbers 15-CV-2303, 15-CV-2304, and 15-CV2305 (collectively, the “Consolidated Cases”)), as these cases
arose out of the same general set of facts.
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(Jan. Order at 25.)

The Court further directed that all future filings be docketed in
the Lead Case.

(Jan. Order at 25.)

Prior to the Court’s determination of the motion to
dismiss filed in the Lead Case, motions to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) or 12(c) were filed in
the Consolidated Cases (the “Rule 12 Motions to Dismiss”).

(See

No. 15-CV-2303, Docket Entry 9; No. 15-CV-2304, Docket Entry 9;
and No. 15-CV-2305, Docket Entry 11.)
On May 13, 2016, Defendants filed a motion requesting
that

all

of

Plaintiff’s

claims

be

dismissed

for

failure

to

prosecute pursuant to Federal Rule of Civil Procedure 41, and that
Plaintiff’s claims in the Consolidated Cases be dismissed pursuant
to Rule 12(b)(6).

(Defs.’ Mot., Docket Entry 20, at 3.)

On

November 8, 2016, the Court referred Defendants’ motion to Judge
Shields for a report and recommendation on whether the motion
should be granted.

(Ref. Order, Docket Entry 22.)

On February 10, 2017, Judge Shields issued her R&R. (See
generally R&R.)
without

prejudice

prosecution.

Judge Shields recommended that the Court deny
Defendants’

(R&R at 7-10.)

motion

to

dismiss

for

lack

of

Judge Shields also recommended that

the Rule 12 Motions to Dismiss be denied without prejudice to
Defendants’ submission of a proposed briefing schedule for renewed
motions to dismiss the Consolidated Cases.

(R&R at 6-7.)

Judge

Shields noted that any renewed motions should “consider, argue and
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incorporate if appropriate” this Court’s determinations set forth
in the January Order.
On

(R&R at 11.)

February

18,

2017,

Defendants

filed

a

letter

requesting that the Court adopt the following briefing schedule
for their motion to dismiss the Consolidated Cases: Defendants’
motion to dismiss to be filed and served by April 3, 2017;
Plaintiff’s response to be filed and served by May 1, 2017; and
Defendants’ reply to be filed and served by May 15, 2017.

(Defs.’

Ltr., Docket Entry 25, at 1.)
DISCUSSION
In reviewing an R&R, a district court “may accept,
reject,

or

modify,

in

whole

or

in

part,

recommendations made by the magistrate judge.”
(1)(C).

the

findings

and

28 U.S.C. § 636(b)

If no timely objections have been made, the “court need

only satisfy itself that there is no clear error on the face of
the record.”

Urena v. New York, 160 F. Supp. 2d 606, 609-10

(S.D.N.Y. 2001) (internal quotation marks and citation omitted).
Objections were due within fourteen (14) days of service
of the R&R.

The time for filing objections has expired, and no

party has objected.

Accordingly, all objections are hereby deemed

to have been waived.
Upon careful review and consideration, the Court finds
Judge Shields’ R&R to be comprehensive, well-reasoned, and free of
clear error, and it ADOPTS the R&R in its entirety.
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The Court

also APPROVES Defendants’ proposed briefing schedule for their
motion to dismiss the Consolidated Cases.

(See Defs.’ Ltr.)

Additionally, in light of Plaintiff’s failure to timely
replead his claim against Officer Dubriske, (see Jan. Order at
26), Plaintiff’s claim against Officer Dubriske is DISMISSED WITH
PREJUDICE.
CONCLUSION
For

the

foregoing

reasons,

the

Court

ADOPTS

Judge

Shields’ R&R (Docket Entry 23) in its entirety. Defendants’ motion
to dismiss for lack of prosecution (Docket Entry 20) is DENIED
WITHOUT PREJUDICE.

The motions to dismiss pursuant to Rule 12

filed in the Consolidated Cases (No. 15-CV-2303, Docket Entry 9;
No. 15-CV-2304, Docket Entry 9; and No. 15-CV-2305, Docket Entry
11) are DENIED WITHOUT PREJUDICE.

Defendants’ proposed briefing

schedule for their renewed motion to dismiss the Consolidated Cases
(see Docket Entry 25) is APPROVED. Defendants shall file and serve
their motion to dismiss on or before April 3, 2017; Plaintiff shall
file and serve his response on or before May 1, 2017; Defendants
shall file and serve their reply, if any, on or before May 15,
2017.
Plaintiff’s claim against Officer Dubriske is DISMISSED
WITH PREJUDICE and the Clerk of the Court is directed to TERMINATE
Officer Dubriske as a defendant in this action.

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The Clerk of the

Court is further directed to mail a copy of this Memorandum and
Order to the pro se Plaintiff.
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, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.

Dated:

March
7 , 2017
Central Islip, New York

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