Conyers v. United States Department of Veterans Affairs

Filing 37

ORDER ADOPTING REPORT AND RECOMMENDATIONS - see order for details.. Ordered by Judge Joseph F. Bianco on 2/22/2017. (Bollbach, Jean)cm by chambers to pro se by fcm on 2/22/17

FILED

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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VINCENT CURTIS CONYERS,

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FEB 22. 2017

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LONG ISLAND OFFICE

Plaintiff,
ORDER
16-CV-13 (JFB) (SIL)

-againstUNITED STATES DEPARTMENT OF VETERAN
AFFAIRS,
Defendants.

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JOSEPH F. BIANCO, District Judge:
Before the Court is a Report and Recommendation ("R&R") from Magistrate Judge Locke
recommending that the Complaint in this action be dismissed in its entirety, and that plaintiff be granted
leave to amend his Complaint. (ECF No. 34.) 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 at 38.) The date for filing any
objections has since expired, and none of the parties has filed any objection to the R&R. For the
reasons set forth below, the Court adopts the thorough and well-reasoned R&R.
Where there are no objections, the Court may adopt the report and recommendation without de

novo review. See Thomas v. Arn, 4 74 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, 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 all parties have 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 Complaint, the motion papers, 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 and dismisses the Complaint in its entirety with leave to add causes of action for
injunctive relief pursuant to 5 U.S.C. § 552a(g)(l )(A)-(8) and to re-plead causes of action one, two,
three, four, five, six, eight, nine, and ten. Plaintiff has already filed an Amended Complaint with the
Court (ECF No. 36), and need notre-file it pursuant to this Order.
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~~b~.f\C...C
Jo rP -F'. Bianco
U •ted States District Judge
Dated:

February 22, 2017
Central Islip, New York

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