Grafton et al v. Hesse et al

Filing 48

ORDER ADOPTING REPORT AND RECOMMENDATIONS - For the reasons set forth herein, the Report is accepted in its entirety. For the reasons set forth in the Report, the branch of defendants' motion seeking dismissal of plaintiffs' claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and the PLRA for failure to exhaust administrative remedies is granted; plaintiffs' claims against defendants are dismissed in their entirety with prejudice for failure to ex haust administrative remedies; and Grafton's letter motion for a declaratory judgment and injunctive relief is denied. The Clerk of the Court shall enter judgment in favor of defendants and close this case. SO Ordered by Judge Sandra J. Feuerstein on 9/27/2017. (Tirado, Chelsea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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KENNETH GRAFTON, MICHAEL BLAYLOCK,
and BILAL HASSAN,

FILED 
CLERK 

9:56 am, Sep 27, 2017

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Plaintiffs,
ORDER
15-CV-4790 (SJF)(GRB)

-againstASSISTANT DEPUTY UNDERSHERIFF HESSE,
Chief Administrative Officer, et al.
Defendants.
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FEUERSTEIN, District Judge:

Pending before the Court are the objections of Kenneth Grafton (“Grafton”) to the Report
and Recommendation of the Honorable Gary R. Brown, United States Magistrate Judge, dated
August 25, 2017 (“the Report”): (1) recommending, (a) that the branch of defendants’ motion
seeking dismissal of plaintiffs’ claims against them pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure and the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a),
for failure to exhaust administrative remedies be granted, and (b) that Grafton’s letter motion for
a declaratory judgment and injunctive relief be denied; (2) advising, inter alia, (a) that “[a]ny
written objections to the Report . . . must be filed with the Clerk of the Court within fourteen (14)
days of service of th[e] [R]eport[,]” (Report at 20) (citing 28 U.S.C. § 636(b)(1)(c) and Rules
6(a) and 72(b) of the Federal Rules of Civil Procedure), (b) that “[a]ny requests for an extension
of time for filing objections must be directed to the district judge assigned to this action prior to
the expiration of the fourteen (14) day period for filing objections[,]” (id.), and (c) that a
“[f]ailure to file objections within fourteen (14) days will preclude further review of th[e]

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[R]eport . . . either by the District Court of [sic] Court of Appeals[,]” (id.) (emphasis omitted)
(citing Thomas v. Arn, 474 U.S. 140, 155, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985) and Caidor v.
Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008)); and (3) directing defendants to serve a copy
of the Report upon plaintiffs by overnight mail and first-class mail to their last known address
and to file proof of such service on ECF. The affidavit of service filed by defendants in
accordance with the Report indicates that a copy of the Report was served upon plaintiffs via
regular mail and USPS Express Mail to their address of record on August 28, 2017. (See Docket
Entry [“DE”] 46). Only Grafton has filed objections to the Report; plaintiffs Michael Blaylock
(“Blaylock”) and Bilal Hassan (“Hassan”) have neither filed any objections to the Report, nor
sought an extension of time to do so. For the reasons stated herein, Magistrate Judge Brown’s
Report is accepted in its entirety.

I.

DISCUSSION
A.

Standard of Review

Any party may serve and file written objections to a report and recommendation of a
magistrate judge on a dispositive matter within fourteen (14) days after being served with a copy
thereof. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Any portion of such a report and
recommendation to which a timely objection has been made is reviewed de novo. See 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72(b)(3). The court, however, is not required to review the factual
findings or legal conclusions of the magistrate judge as to which no proper objections are
interposed. See Thomas, 474 U.S. at 150, 106 S. Ct. 466. Where a party “received clear notice
of the consequences of the failure to object” to a report and recommendation on a dispositive
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matter, Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992) (quotations and citation omitted);
accord Small v. Secretary of Health and Human Svcs., 892 F.2d 15, 16 (2d Cir. 1989), his
“failure to object timely to [that] report waives any further judicial review of the report.” Frank,
968 F.2d at 16; see also Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015); Caidor, 517 F.3d at
604.
Nonetheless, the waiver rule is “nonjurisdictional” and, thus, the Court may excuse a
violation thereof “in the interests of justice.” King v. City of New York, Dep’t of Corr., 419 F.
App’x 25, 27 (2d Cir. Apr. 4, 2011) (summary order) (quoting Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993)); see also DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. 2000). “Such discretion is
exercised based on, among other factors, whether the defaulted argument has substantial merit or,
put otherwise, whether the magistrate judge committed plain error in ruling against the defaulting
party.” Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir.
2000); accord King, 419 F. App’x at 27.
Moreover, objections to a magistrate judge’s report and recommendation “must be
specific and clearly aimed at particular findings in the magistrate judge’s proposal.” Trivedi v.
N.Y.S. Unified Court Sys. Office of Court Admin., 818 F. Supp. 2d 712, 726 (S.D.N.Y. 2011),
aff’d sub nom Seck v. Office of Court Admin., 582 F. App’x 47 (2d Cir. Nov. 6, 2014) (quotations
and citation omitted); see also Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir.
2002) (finding that objections “devoid of any reference to specific findings or recommendations
to which [the party] objected and why,” was not “specific enough to preserve th[e] claim for
[further judicial] review.”); Benitez v. Parmer, 654 F. App’x 502, 503-04 (2d Cir. June 30, 2016)
(summary order) (finding that a general objection that did not identify any portion of the report
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and recommendation to which there was a specific objection “was insufficient to obtain de novo
review by the district court,” and was inadequate to preserve the claim for appellate review).
General objections, or “objections that are merely perfunctory responses argued in an attempt to
engage the district court in a rehashing of the same arguments set forth in the original papers will
not suffice to invoke de novo review . . . [because] [s]uch objections would reduce the
magistrate’s work to something akin to a meaningless dress rehearsal.” Owusu v. New York State
Ins., 655 F. Supp. 2d 308, 313 (S.D.N.Y. 2009) (alterations, quotations and citations omitted);
see also Moore v. Newton, 220 F. Supp. 3d 275, 283-84 (E.D.N.Y. 2016) (“The clear error
standard . . . applies when a party makes only conclusory or general objections, or simply
reiterates its original arguments.”) To accept the report and recommendation of a magistrate
judge to which such general or perfunctory objections are made, or to which no specific, timely
objection has been made, the district judge need only be satisfied that there is no clear error
apparent on the face of the record. See Fed. R. Civ. P. 72(b); Spence, 219 F.3d at 174 (a court
may review a report to which no timely objection has been interposed to determine whether the
magistrate judge committed “plain error.”); Sibley v. Choice Hotels Int’l, Inc., 304 F.R.D. 125,
129 (E.D.N.Y. 2015) (“[I]f a party makes only conclusory or general objections, or simply
reiterates his original arguments, the Court reviews the Report and Recommendation only for
clear error.” (quotations and citation omitted)).
Whether or not proper objections have been filed, the district judge may, after review,
accept, reject, or modify any of the magistrate judge’s findings or recommendations. 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b).

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B.

Grafton’s Objections

Grafton does not assign any specific error to any of Magistrate Brown’s findings or
conclusions in the Report. Indeed, Grafton does not address the issue of his failure to exhaust his
administrative remedies at all. Rather, Grafton objects to the Report “because: 1. The
defendant(s) fail to accept their wrong doings[;] 2. The defendant(s) refuse to accept or
acknowledge their irresponsibilities as officers acting under the color of law in violation of 18
U.S.C. §§ 241 and 242[;] [and] 3. The defendant(s) has [sic] abused their power as officers of the
law by acting outside of the powers in which they are bounded by to inflict pain and sufferage
[sic] upon the plaintiff(s).”
As Grafton fails to make any specific timely objection to the Report, and Blaylock and
Hassan have not timely filed any objections to the Report, nor sought an extension of time to do
so, the Report is reviewed in its entirety only for clear error. There being no clear error on the
face of the Report, the Report is accepted in its entirety. For the reasons set forth in the Report,
the branch of defendants’ motion seeking dismissal of plaintiffs’ claims against them pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure and the PLRA for failure to exhaust
administrative remedies is granted; plaintiffs’ claims against defendants are dismissed in their
entirety with prejudice for failure to exhaust administrative remedies; and Grafton’s letter motion
for a declaratory judgment and injunctive relief is denied.

II.

CONCLUSION
For the reasons set forth herein, the Report is accepted in its entirety. For the reasons set

forth in the Report, the branch of defendants’ motion seeking dismissal of plaintiffs’ claims
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against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and the PLRA for
failure to exhaust administrative remedies is granted; plaintiffs’ claims against defendants are
dismissed in their entirety with prejudice for failure to exhaust administrative remedies; and
Grafton’s letter motion for a declaratory judgment and injunctive relief is denied. The Clerk of
the Court shall enter judgment in favor of defendants and close this case.
SO ORDERED.
/s/
SANDRA J. FEUERSTEIN
United States District Judge
Dated: September 27, 2017
Central Islip, New York

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