Joseph v. Social Security Office

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS : ordered that defendant's motion to dismiss plaintiffs complaint (ECF No. 5) is granted, and plaintiff is granted leave to file an Amended Complaint. The Court notes that the Amended Complaint must add ress the sovereign immunity issue, exhaustion issue, and the other pleading defects identified by Magistrate Judge Brown in the R&R. If plaintiff intends to pursue his claims, he may file an Amended Complaint within thirty (30) days of this Order. Pl aintiff is warned that if he fails to file an Amended Complaint within thirty days, the Court shall dismiss this case with prejudice, without further notice, for failure to prosecute,pursuant to Rule 41 (b) of the Federal Rules of Civil Procedure. Ordered by Judge Joseph F. Bianco on 3/20/2017. (Bollbach, Jean)cm by chambers to pro se by fcm on 3/20/17

FILED

IN CLERK'S OFFICE
U.S. DISTRICT COUr~T E.D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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ANDERSON JOSEPH,

*

MAR 2c 2017

*

LONG ISLAND OFFICE

Plaintiff,
ORDER
16-CV-3377 (JFB) (ORB)

-againstSOCIAL SECURITY OFFICE,
Defendant.

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JOSEPH F. BIANCO, District Judge:

Before the Court is a Report and Recommendation ("R&R," ECF No. 10) from Magistrate
Judge Brown recommending that the Court grant defendant's motion to dismiss (ECF No. 5). The
R&R instructed that any objections to the R&R be submitted within fourteen (14) days ofse~ice
ofthe R&R. (See R&R, dated February 28,2017, at 15.) Defendant served the R&RonMarch 2,
2017 (see ECF No. 11 ), and accordingly, the date for filing any objections has since expired.
Plaintiff has not filed any objection to the R&R, and for the reasons set forth below, the Court
adopts the thorough and well-reasoned R&R in its entirety and grants defendant's motion to
dismiss plaintiffs complaint.
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)(1)(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 ofjustice."' (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 thorough R&R in their entirety.
Accordingly, it is hereby ordered that defendant's motion to dismiss plaintiffs complaint
(ECF No. 5) is granted, and plaintiff is granted leave to file an Amended Complaint. The Court
notes that the Amended Complaint must address the sovereign immunity issue, exhaustion issue,
and the other pleading defects identified by Magistrate Judge Brown in the R&R. If plaintiff
intends to pursue his claims, he may file an Amended Complaint within thirty (30) days of this
Order. Plaintiff is warned that if he fails to file an Amended Complaint within thirty days, the
Court shall dismiss this case with prejudice, without further notice, for failure to prosecute,
pursuant to Rule 41 (b) of the Federal Rules of Civil Procedure.

I

Dated:

March rlC>, 2017
Central Islip, NY