O'Neal v. Spota et al

Filing 128

ORDER ADOPTING REPORT AND RECOMMENDATIONS : IT IS HEREBY ORDERED that the Town Defendants' motion to dismiss. (ECF No. 51) is granted and that all federal claims against them, as well as all federal claims against the Individual Defendants, are dismissed with prejudice. The Court declines to exercisesupplemental; jurisdiction over any state law claims and, therefore, the state law claims are dismissed without prejudice: The Clerk of the Court shall enter judgment accordingly and close this case.3 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; therefore, in forma pauperis status is denied for purposes of anappeal.. Ordered by Judge Joseph F. Bianco on 9/19/2017. (Bollbach, Jean)cm by chambers

IN CF

U.S.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

------------------------------------------------------------------------)(
BRONTIE O'NEAL,

*

ILE 0

D1srk1~~'b~B~~~.N.Y.
SEP 19 2017

*

LONG ISLAND OFFICE

Plaintiff,
ORDER
16-CV-00579 (JFB)(GRB)

-againstTHOMAS SPOTA et al.,
Defendants.

------------------------------------------------------------------------)(
JOSEPH F. BIANCO, District Judge:
Before the Court is a Report and Recommendation ("R&R," ECF No. 120) from Magistrate
Judge Brown recommending that the Court (1) grant the motion to dismiss by defendants East
Hampton Town and East Hampton Town Police (the "Town Defendants"); (2) sua sponte dismiss
all claims against individual defendants Marianne S. Rantala and Irene Foster (the "Individual
Defendants"); and (3) deny prose plaintiff leave to amend his pleading. 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 15), and the Town Defendants served plaintiff with the R&R on August 28, 2017 (see ECF No.
122). The date for filing any objections to the R&R has accordingly since expired, and plaintiff
has not filed any objections. Although the Court has received several pro se communications
from plaintiff, including a document entitled "Amended Complaint" (see ECF Nos. 121, 123-27),
none are responsive to the R&R. Nevertheless, as discussed below, the Court has conducted a de

novo review of the R&R and those filings in an abundance of caution.

For the reasons that

follow, the Court adopts the thorough and well-reasoned R&R in its entirety and dismisses with
prejudice all federal claims against the Town Defendants and the Individual Defendants. 1 The

1 The

Court has considered plaintiffs supplemental submissions, including a proposed amended complaint, but none

1

Court also declines, in its discretion, to exercise supplemental jurisdiction over any state law
claims, which it therefore dismisses without prejudice.
Where there are no objections, the Court may adopt the report and recommendation without
de novo review. See Thomas v. Arn, 414 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 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. In
addition, the Court has reviewed plaintiffs subsequent filings, including his Amended Complaint.
None are responsive to the R&R, and, in any event, they do not remedy the pleading defects
identified in the R&R. 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

of his filings address the legal effects in his pleading, and the Court, as did Magistrate Judge Brown, concludes that
leave to amend the federal claims would be futile.

2

in the well-reasoned and thorough R&R in their entirety. 2
Accordingly, IT IS HEREBY ORDERED that the Town Defendants' motion to dismiss.
(ECF No. 51) is granted and that all federal claims against them, as well as all federal claims
against the Individual Defendants, are dismissed with prejudice. The Court declines to exercise
supplemental; jurisdiction over any state law claims and, therefore, the state law claims are
dismissed without prejudice: The Clerk of the Court shall enter judgment accordingly and close
this case. 3 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; therefore, in forma pauperis status is denied for purposes of an
appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SOO~D.,
Dated:

\:1,

\.

. Bianco
States District Judge

September
2017
Central Islip, New York

2

In addition, the Court adopts the recommendation that the Court dismiss sua sponte all of the Section 1983 claims
against the Individual Defendants because plaintiff has failed to plausibly allege that either acted under color of state
law. See Estes-El v. Dumoulin, No. 6-CV-2528 JFB WDW, 2012 WL 1340805, at *4 (E.D.N.Y. Apr. 18, 2012) ("As
a baseline matter, private citizens and entities are not generally subject to 1983 liability·">·
3

The Court previously dismissed with prejudice all claims against the other defendants in this. action by Memorandum
and Order dated January 12, 2017. (ECF No. 60.)

3