Jones v. Sposato et al

Filing 48

ORDER ADOPTING REPORT AND RECOMMENDATIONS: IT IS HEREBY ORDERED that defendants' motion to dismiss the complaint (ECF No. 28) is denied without prejudice to renewal as a Rule 56 motion for summary judgment followinglimited discovery on the issue of administrative exhaustion; IT IS FURTHER ORDERED that defendants' motion to dismiss the Amended Complaint as unopposed or, alternatively, for lack of prosecution (ECF No. 35) is denied as moot; and IT IS FURTHER ORDERED that defendants serve a copy of this Order on plaintiff. Ordered by Judge Joseph F. Bianco on 9/11/2017. (Bollbach, Jean)

Ff LED
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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SEP 11 2017

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LONG ISLAND OFFICE

CORY TERRELL JONES,
Plaintiff,
ORDER
16-CV-5121 (JFB) (ORB)

-againstSHERIFF MICHAEL J. SPOSATO, ET AL.,
Defendants.

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JOSEPH F. BIANCO, District Judge:
On August 22, 2017, Magistrate Judge Brown issued a Report and Recommendation
(the "R&R," ECF No. 43) recommending that the Court deny defendants' motion to dismiss the
complaint (ECF No. 28) without prejudice to renewal as a Rule 56 motion for summary
judgment following limited discovery on the issue of administrative exhaustion, and that the
Court deny as moot defendants' motion to dismiss the Amended Complaint as unopposed or,
alternatively, for lack of prosecution (ECF No. 35). The R&R instructed that any objections to
the R&R be submitted within fourteen (14) days of service of the R&R, i.e., by September 5,
2017. (R&R 14.) The date for filing any objections has thus expired, and neither party has 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, denies defendants' motion to dismiss the complaint (ECF No.
28) without prejudice to renewal as a Rule 56 motion for summary judgment following limited
discovery on the issue of administrative exhaustion, and denies as moot defendants' motion to
dismiss the Amended Complaint as unopposed or, alternatively, for lack of prosecution (ECF
No. 35).
Where there are no objections to a report and recommendation issued by a magistrate

judge, 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, 107 (2d Cir. 2003) ("[B]ecause the waiver rule is non
jurisdictional, we 'may excuse the default in the interests of justice."' (quoting Thomas, 414 U.S.
at 155)).
Although the 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 in their entirety. Accordingly,
IT IS HEREBY ORDERED that defendants' motion to dismiss the complaint (ECF No.
28) is denied without prejudice to renewal as a Rule 56 motion for summary judgment following
limited discovery on the issue of administrative exhaustion;
IT IS FURTHER ORDERED that defendants' motion to dismiss the Amended Complaint
as unopposed or, alternatively, for lack of prosecution (ECF No. 35) is denied as moot; and

IT IS FURTHER ORDERED that defendants serve a ~opy of this Order on plaintiff.
!

SO <AR.DERED. [

Dated:

September 11, 2017
Central Islip, NY