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)

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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. ยง 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

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