Flemming v. Boyea et al
Filing
27
ORDER: ORDERS that 25 Magistrate Judge Treece's July 27, 2015 Report-Recommendation and Order is ADOPTED in its entirety for the reasons set forth therein. ORDERS that 20 Defendants' motion to dismiss is DENIED. ORDERS that t he Clerk of the Court shall reissue Summonses for Defendants Moulton, Willett, Finazzo, Boyea, and Welch, and provide them to Plaintiff so that he may serve Defendants Moulton, Willett, Finazzo, Boyea, and Welch in accordance with Rule 4 of the Feder al Rules of Civil Procedure. ORDERS that Plaintiff shall have forty-five (45) days from the date of this Order to serve Defendants. Signed by U.S. District Judge Mae A. D'Agostino on 9/1/15. {order served certified mail/return receipt on plaintiff}(nas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
WOODROW FLEMMING,
Plaintiff,
vs.
9:13-CV-1324
(MAD/RFT)
BRENT MOULTON, C.O. Upstate Correctional
Facility; JAMES WILLETT, C.O. Upstate Correctional
Facility; MATTHEW WELCH, C.O. Upstate
Correctional Facility; JOHN FINAZZO, C.O.
Upstate Correctional Facility; and THOMAS BOYEA,
Sgt. Upstate Correctional Facility,
Defendants.
____________________________________________
APPEARANCES:
OF COUNSEL:
WOODROW FLEMMING
P.O. Box 146
New York, New York 10039
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants
HELENA LYNCH, AAG
Mae A. D'Agostino, U.S. District Judge:
ORDER
In a complaint dated October 17, 2013, Plaintiff alleges that Defendants violated his civil
rights during his incarceration at Upstate Correctional Facility ("Upstate C.F."). See Dkt. No. 1.
On August 29, 2014, the Court issued a Decision and Order finding that only Plaintiff's Eighth
Amendment excessive force claim against Defendants Moulton, Willett, Welch, Finazzo, and
Boyea survived sua sponte review under 28 U.S.C. § 1915A. See Dkt. No. 10. In that Decision
and Order, the Court also denied Plaintiff leave to proceed in forma pauperis and directed the
Clerk of the Court to "issue summonses and forward them to Plaintiff so that he may serve
Defendants Moulton, Willett, Welch, Finazzo, and Boyea in accordance with Rule 4 of the
Federal Rules of Civil Procedure." Id. at 14 n.17. That same day, the Clerk erroneously
terminated Defendant Welch instead of Wentzel from this action and, on September 2, 2014, the
Clerk provided Plaintiff with summonses for Defendants Boyea, Finazzo, Moulton, Wentzel, and
Willett. See Dkt. No. 11.
On September 12, 2014, Plaintiff submitted a letter requesting, among other things, that
this Court issue an order directing the Attorney General's office to provide Plaintiff with each
Defendant's address so that he could effect service. See Dkt. No. 12. On January 12, 2015,
Plaintiff filed a second letter seeking assistance with service and requested that the Court reissue
the summonses as he did not receive them. See Dkt. No. 15. On January 15, 2015, the Court
issued a text order directing the Clerk to reissue summonses and instructed Plaintiff on how to
effect service. See Dkt. No. 16.
On February 4, 2015, Upstate C.F. received three envelopes individually addressed to
Defendants Boyea, Finazzo, and Wentzel. Each envelope contained one copy of the Summons
and Complaint along with a "Proof of Service" form bearing Plaintiff's signature. See Dkt. Nos.
20-3 – 20-8. On February 6, 2015, Upstate C.F. received an enveloped addressed to Defendant
Willett, which contained a copy of the Summons and Complaint and a "Proof of Service" form
signed by Plaintiff. Also on February 6, 2015, Riverview C.F. received an envelope addressed to
Defendant Moulton, which contained a copy of the Summons and Complaint, as well as a "Proof
of Service" form bearing Plaintiff's signature. See Dkt. Nos. 20-11 – 20-12. All five envelopes
were mailed via the United States Postal Service regular, first-class mail.
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On February 25, 2015, Defendants moved to dismiss the Complaint for insufficient service
of process. See Dkt. No. 20. Specifically, Defendants contend that the mailings were defective
since they did not conform to the methods of service prescribed by N.Y.C.P.L.R. § 312-a, which
requires mailings to include two copies of a statement of service and acknowledgment of receipt.
As such, Defendants contend that service was not completed as they did not "and remain unable to
sign and return acknowledgment forms with which they were not provided." See Dkt. No. 20-1 at
11.
In a July 27, 2015 Report-Recommendation and Order, Magistrate Judge Treece
recommended that the Court deny Defendants' motion. See Dkt. No. 25. Specifically, Magistrate
Judge Treece found that "the defect in service can be easily cured and that there would be minimal
prejudice to the Defendants in allowing Plaintiff, proceeding pro se, to do so as the Defendants
have actual notice of the action, and in fact have received the Summons and Complaint." Id. at 8.
The Report-Recommendation and Order also noted that the Clerk erroneously terminated
Defendant Welch and issued a summons for Defendant Wentzel, who should have been
terminated. See id. This confusion likely led to Plaintiff's failure to attempt service on Defendant
Welch. See id.
Currently before the Court is Magistrate Judge Treece's July 27, 2015 ReportRecommendation and Order recommending that the Court should deny Defendants' motion to
dismiss.
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same
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arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After the appropriate review, "the court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1).
A litigant's failure to file objections to a magistrate judge's report and recommendation,
even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to
object to any purported error or omission in a magistrate judge's report waives further judicial
review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice
is sufficient if it informs the litigant that the failure to timely object will result in the waiver of
further judicial review and cites pertinent statutory and civil rules authority. See Frank v.
Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d
15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the report explicitly states
that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
Having carefully reviewed Magistrate Judge Treece's July 27, 2015 ReportRecommendation and Order, the parties' submissions and the applicable law, the Court finds that
Magistrate Judge Treece correctly determined that the Court should deny Defendants' motion to
dismiss. It is clear that Plaintiff has attempted to comply with the service requirements, that
Defendants have actual notice of this action through their receipt of the Summons and Complaint
and that they will suffer little prejudice if the Court permits this action to go forward.
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Accordingly, the Court hereby
ORDERS that Magistrate Judge Treece's July 27, 2015 Report-Recommendation and
Order is ADOPTED in its entirety for the reasons set forth therein; and the Court further
ORDERS that Defendants' motion to dismiss is DENIED; and the Court further
ORDERS that the Clerk of the Court shall reissue Summonses for Defendants Moulton,
Willett, Finazzo, Boyea, and Welch, and provide them to Plaintiff so that he may serve
Defendants Moulton, Willett, Finazzo, Boyea, and Welch in accordance with Rule 4 of the
Federal Rules of Civil Procedure;1 and the Court further
ORDERS that Plaintiff shall have forty-five (45) days from the date of this Order to
serve Defendants; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 1, 2015
Albany, New York
Furthermore, in order to properly serve Defendants Moulton, Willet, Finazzo, Boyea, and
Welch pursuant to N.Y.C.P.L.R. § 312-a(a), Plaintiff is instructed to serve each Defendant by
first-class mail with a copy of the Summons and Complaint together with two copies of a
Statement of Service by mail and Acknowledgment of Receipt with a return envelope, postage
prepaid, addressed to Plaintiff.
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