Anderson v. Darby et al

Filing 35

ORDER ADOPTING REPORT AND RECOMMENDATIONS : the Court adopts the thorough and well-reasoned R&R in its entirety and grants defendants' motion for summary judgment.. Ordered by Judge Joseph F. Bianco on 3/6/2017. (Bollbach, Jean)

FILED

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------){
KYLE D. ANDERSON,

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

*

MAR 06 2017

*

LONG ISLAND OFFICE

Plaintiff,
ORDER
CV 15-635 (JFB)(GRB)

-against-

DARBY, Officer Badge #3767, LUDEWIG,
officer, and PAZ, Sgt. Badge #26
Defendants.

---------------------------------------------------------------){
JOSEPH F. BIANCO, District Judge:

Before the Court is a Report and Recommendation ("R&R," ECF No. 59) from Magistrate
Judge Brown recommending that the Court grant defendants Darby, Ludewig, and Paz's
("defendants") motions for summary judgment (ECF No. 29). 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 13, 2017, at 10.) The Court mailed the R&R to plaintiff on February 13, 2017, and
the date for filing any objections has accordingly since expired. See Sherlock v. Montefiore Med

Ctr., 84 F .3d 522, 525 (2d Cir. 1996) ("Normally it is assumed that a mailed document is received
three days after its mailing."). Plaintiff has not filed any objections to the R&R. Therefore, for the
reasons set forth below, the Court adopts the thorough and well-reasoned R&R in its entirety and
grants defendants' motion for summary judgment.
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 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)(1)(c) and
Fed. R. Civ. P. 72(b)(3) (requiring de novo review after objections). Because the failure to file
timely objections is not jurisdictional, however, 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, 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 defendants'
motion for summary judgment is granted.
(

Bianco
"ted States District Judge

n.CM~........

Dated:

March _1_, 2017
Central Islip, New York