Marquez v. Commissioner of Social Security

Filing 18

OPINION & ORDER for 17 Report and Recommendations re: 12 MOTION to Dismiss filed by Commissioner of Social Security. For the reasons stated herein, the Court adopts the Report in full. Marquez's complaint is accordingly dismissed for failure to state a claim. The Clerk of Court is requested to terminate the motion pending at document number 12, and to close the case. (Signed by Judge Paul A. Engelmayer on 7/1/2013) (ft) Modified on 7/2/2013 (ft).

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IVETTE MARQUEZ,

12 Civ. 8151 (PAE)

Plaintiffs,

-vOPINION & ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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PAUL A. ENGELMAYER, District Judge:
Before the Court is the May 2,2013 Report and Recommendation of Magistrate Judge
Sarah Netburn, recommending that the Court dismiss plaintiff s complaints for failure to state a
claim (the "Report"). Dkt. 17. For the reasons that follow, the Court adopts the Report in full.

I.

Discussion
Marquez, proceeding pro se, filed this action pursuant to 42 U.S.C. § 405(g) seeking

judicial review of a final decision of the Commissioner of Social Security (the "Commissioner")
denying her application for disability insurance benefits.
The Commissioner has moved to dismiss the complaint pursuant to Federal Rule of Civil
Procedure 12(b)(1) and 12(b)(6). Dkt. 12-15. On May 2, 2013, Judge Netbum issued the
Report, recommending that the Commissioner's motion to dismiss the complaint be granted in
part and denied in part. Specifically, she recommended dismissing the complaint for failure to
state a claim, because Marquez filed this lawsuit more than 60 days after the Commissioner had
issued its notice of final decision. Judge Netbum also recommended denying the motion to

dismiss for lack of subject matter jurisdiction, because timeliness of filing is properly considered
an affirmative defense rather than a jurisdictional bar.
The deadline for the parties to file objections to the Report was May 17,2013. To this
date, no objections have been filed.
In reviewing a Report and Recommendation, a district 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)(I)(C). To accept those portions of the report to which no timely objection has
been made, "a district court need only satisfy itself that there is no clear error on the face ofthe
record." Carlson v. Dep 't ofJustice, No. 10 Civ. 5149 (PAE)(KNF), 2012 WL 928124, at *1
(S.D.N.Y. Mar. 19,2012) (citation omitted); see also Wilds v. United Parcel Serv., 262 F. Supp.
2d 163, 169 (S.D.N.Y. 2003).
Because Marquez has not submitted objections to the Report, a review for clear error is
appropriate. Careful review of the Report reveals no facial error in its conclusions; the Report is
therefore adopted in its entirety. Because the Report explicitly states that "[f]ailure to file these
timely objections will result in a waiver of those objections for the purposes of appeal," Report 9,
these plaintiffs failure to object operates as a waiver of appellate review. See Caidor v.

Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008) (citing Small v. Sec yofHealth & Human
Servs., 892 F.2d 15,16 (2d Cir. 1989)).
CONCLUSION
For the reasons stated herein, the Court adopts the Report in full. Marquez's complaint is
accordingly dismissed for failure to state a claim. The Clerk of Court is requested to terminate
the motion pending at document number 12, and to close the case.

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SO ORDERED.

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United States District Judge
Dated: July 1, 2013
New York, New York

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