Purnell v. Scarglato et al

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATIONS : Accordingly, it is hereby ordered that defendant Martinez's motion to dismiss (ECF No. 22) is granted in its entirety, and plaintiffs claims against defendant Martinez are dismissed. TheCourt 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. Ordered by Judge Joseph F. Bianco on 1/4/2017. (Bollbach, Jean)

FILED

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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KEVIN PURNELL,

IN CLE~K'S or:FICE

U.S. DISTRICl COURT E.O.N.Y.

*

JAN 0 4-2U11

*

bONG ISl-AND OFFICE
Plaintiff,
ORDER
15-CV-4869 (JFB)(ARL)

-against-

LORDES MARTINEZ and FRANCO
FRANTELLIZZl,
Defendants.

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JOSEPH F. BIANCO, District Judge:
Before the Court is a Report and Recommendation ("R&R," ECF No. 32) from Magistrate

Judge Lindsay recommending that the Court grant defendant Lordes Martinez's motion to dismiss
(ECF No. 22) pro se plaintiff Kevin Purnell's (''plaintiff'') claims against defendant Martinez.
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 December 5, 2016, at 12.) The R&R was served on
plaintiff by mail on December 6, 2016. (ECF No. 33.) The date for filing any objections bas

thus expired, and plaintiff has not filed any objection to the R&R. For the reasons set forth below,
the Court adopts the thorough and well-reasoned R&R in its entirety and grants defendant

Martinez's motion to dismiss.

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)(l)(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, I 07 (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 objection 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 thorougb R&R in their entirety.

Accordingly, it is hereby ordered that defendant Martinez's motion to dismiss (ECF No.
22) is granted in its entirety, and plaintiffs claims against defendant Martinez are dismissed. 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).

•
SOQRPEREDr

- ~~""' <S-.~..
Josj:ph F. Bianco
Ulj\ed States District Judge
Dated:

L

2017
January
Central Islip, New York

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