Herring v. Suffolk County Police Department et al

Filing 83

ORDER ADOPTING REPORT AND RECOMMENDATIONS: 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 the motion to dismiss with prejudice (ECF No. 46 ) is granted as to the claims against Dr. Lam. IT IS FURTHER ORDERED that defendant Lam serve a copy of this Order on plaintiff. So Ordered by Judge Joseph F. Bianco on 1/31/2019. (c/m to pro se) (Ortiz, Grisel)

FILED

lf\l UERK'S OFFICE

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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U.S. o: . ; ,':CT COURT E.O.N.Y.

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JAN 3 : 2019

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LOr·'.G \SL.A.ND OFFICE

MELVIN HERRING,
Plaintiff,

ORDER
17-CV-5904 (JFB)(AYS)

-againstSUFFOLK COUNTY POLICE DEPT., et al.,
Defendants.

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JOSEPH F. BIANCO, District Judge:
On October 19, 2018, Magistrate Judge Shields issued a Report and Recommendation
(the "R&R," ECF No. 74) recommending that the Court grant the motion to dismiss filed by
defendant Dr. Lien Lam (incorrectly sued herein as Liam Lam) ("Dr. Lam") (ECF No. 46). The
R&R was served on plaintiff on the same date via FedEx as well as by First Class Mail. (ECF
No. 75.) 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 November 2, 2018. (R&R 11.) The date for filing any
objections has thus expired, and plaintiff has not 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, grants Dr.
Lam's motion to dismiss, and dismisses plaintiffs claims as to Dr. Lam with prejudice.
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 Mlcts., 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.
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 the motion to dismiss with prejudice (ECF No. 46) is
granted as to the claims against Dr. Lam. IT IS FURTHER ORDERED that defendant Lam
serve a copy of this Order on plaintiff.

SO~D.

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JO
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Dated: January~' 2019
Central Islip, NY

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. IANCO
ED STATES DISTRICT JUDGE