Hosannah v. Sposato et al

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATIONS and grants defts motion to dismiss. IT IS HEREBY ORDERED that defendants' motion to dismiss plaintiffs claims against them (ECF No. 18) is granted. The dismissal is without prejudice as to his due proces s claim of deliberate indifference and his First Amendment claimalleging deprivation of his free exercise of religion. The remaining federal claims are dismissed with prejudice, and the Court declines to exercise supplemental jurisdiction of the stat e law claims at this juncture. The amended complaint must be filed with the Court by September 5, 2017. Failure to file the amended complaint may result in dismissal of the case with prejudice for failure to prosecute. 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.. Ordered by Judge Joseph F. Bianco on 7/26/2017. (Bollbach, Jean)

F 1 LED

IN CLERK'S OUFR~t~'fD NY.
U.S. DISTRICT CO
· · '

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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JUL 26 2017

LONG ISLAND OFFICE

DAVID HOSANNAH,

Plaintiff,

ORDER
-against-

16-CV-1045 (JFB)(AYS)

SHERIFF MICHAEL SPOSATO, et al.,
Defendants.

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JOSEPH F. BIANCO, District Judge:

Proceeding pro se, plaintiff David Hosannah ("Hosannah" or "Plaintiff') filed this action
against unnamed Nassau County Crimin.al Supreme Court officers and the Nassau County
Correctional Center ("NCCC") (collectively "defendants"). Before the Court is a Report and
Recommendation ("R&R," ECF No. 32) from Magistrate Judge Shields recommending that the
Court grant defendants' motion to dismiss (ECF No. 18) with leave to replead. 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 July 5, 2017, at 36-37.) Defendants served the R&R on plaintiff on
January 31, 2017 and February 1, 2017 (see ECF Nos. 60-61), and the date for filing any objections
has accordingly since expired. 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' motions to dismiss plaintiffs claims against them. The dismissal is without
prejudice as to his due process claim of deliberate indifference and his First Amendment claim
alleging deprivation of his free exercise of religion. The remaining federal claims are dismissed
with prejudice, and the Court declines to exercise supplemental jurisdiction of the state law claims
at this juncture.

*

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 objectio.ns). 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 ofjustice."' (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 to dismiss plaintiffs claims against them (ECFNo. 18) is granted. The dismissal is without
prejudice as to his due process claim of deliberate indifference and his First Amendment claim
I
I

alleging deprivation of his free exercise of religion. lfhe remaining federal claims are dismissed
with prejudice, and the Court declines to exercise supplemental jurisdiction of the state law claims
at this juncture.

The amended complaint must be filed with the Court by September 5, 2017.

Failure to file the amended complaint may result in dismissal of the case with prejudice for failure
to prosecute.
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).

~~RRD.
o eph F. Bianco
"ted States District Judge
Dated:

July ;J~2017
Central Islip, New York