Leibovitz v. Ferrara et al

Filing 119

OPINION ADOPTING REPORT & RECOMMENDATIONS for 98 Report and Recommendations, 78 Motion to Dismiss filed by The City of New York, Marisa Valle. As no objections were filed, the Court has reviewed the Report for clear error and found none. The Report is thus adopted in its entirety and the motion to dismiss is granted. As the deficiencies in the SAC "cannot be remedied by repleading," this Court finds that amendment would be futile and dismisses these claims with prejudice. Report at 24. Remaining in this action, therefore, are (i) Plaintiff's claims against Court Officer Rapaglia for excessive force, assault, and battery; and (ii) Plaintiff's claims against Court Officers Tusa and Daley for failure to intervene in Rapaglia's alleged excessive force. See Dkt. 100 at 6. The Clerk of Court is respectfully directed to close the motion at docket entry 78. (As further set forth in this Order.) (Signed by Judge Ronnie Abrams on 7/1/2016) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 7/1/2016

ET AN LEIB OVITZ,
Plaintiff,
V.

No. 14-CV-3297 (RA)

THE CITY OF NEW YORK, a municipal
entity; NYPD MANHATTAN DA SQUAD
DETECTIVE MARISA VALLE; NEW
YORK STATE COURT OFFICERS BRIAN
DALEY, SALVA TORE RAPAGLIA,
NICOLE TUSA,

OPINION ADOPTING
REPORT & RECOMMENDATION

Defendants.

RONNIE ABRAMS, United States District Judge:
Plaintiff Etan Leibovitz initiated this action pro se on April 23, 2014, alleging violations
of his constitutional rights by various New York State and City officials. On April 16, 2015,
Plaintiff filed a second amended complaint ("SAC"), which Defendants City of New York and
New York City Police Department Detective Marisa Valle moved to dismiss on October 30,
2015. 1 The Court referred that motion to Judge Francis for a report and recommendation. On
March 17, 2016, Judge Francis issued a detailed and well-reasoned 25-page Report &
Recommendation (the "Report"), recommending that this Court grant the motion to dismiss.
Following the filing of the Report, on April 6, 2016 and April 28, 2016, this Court twice granted
Plaintiffs requests to extend the deadline to object. See Dkt. 104, 113. On April 28, 2016, the
Court ordered "that the deadline for Plaintiff to oppose the Report and Recommendation is
extended until May 16, 2016.
1

Dkt. I 00.

No additional extensions will be granted irrespective of the

On March 21, 2016, the Court dismissed claims in the SAC against various other state defendants. See

progress of Plaintiffs FOIL requests." 2 Dkt. 113. On June 2, 2016, more than two weeks after
the Court's deadline, Plaintiff submitted a letter requesting additional time to object to the Report
and detailing the status of (i) his FOIL requests for information about Defendant Valle, (ii) his
ongoing criminal appeal in the New York State Supreme Court Appellate Term, and (iii) his
"inquest" pending in Queens Civil Court. Dkt. 117 at 1-3. In the letter, Plaintiff also stated that
he was "still in the process of amending [his] second amended complaint and from there [he] will
file a motion seeking leave to amend." Id. at 3. The Defendants opposed the extension, which
was denied on June 27, 2016. No objections have been filed by Plaintiff to date.
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)(l). Parties may object to a
magistrate judge's recommended findings "[w]ithin 14 days after being served with a copy of the
recommended disposition."

Fed. R. Civ. P. 72(b)(2).

"The district court may adopt those

portions of the report to which no specific, written objection is made, as long as the factual and
legal bases supporting the findings and conclusions set forth in those sections are not clearly
erroneous or contrary to law." Minto v. Decker, 108 F. Supp. 3d 189, 192 (S.D.N.Y. 2015)
(internal quotations omitted). "When no objections are filed to an R & R, a district court need
only satisfy itself that there is no 'clear error on the face of the record' in order to accept the
recommendation." Santos v. City of New York, No. 10-CV-3159 (JPO), 2012 WL 565987, at *1
(S.D.N.Y. Feb. 21, 2012). "[P]ro se status [does not] excuse a party from meeting deadlines
imposed by the Court." Elliott v. Nestle Waters N Am. Inc., No. 13-CV-6331(RA),2014 WL
1795297, at *6 (S.D.N.Y. May 6, 2014) (alterations in original) (quoting Martinez v. Ravikumar,

2

In Plaintiffs April 20, 2016 letter requesting a second extension of time, Plaintiff noted that he had filed a
FOIL request seeking information about prior suits against Defendant Valle. Dkt 112 at 2.

2

536 F. Supp. 2d 369, 370 (S.D.N.Y. 2008)); see also Santos, 2012 WL 565987, at

*1 (denying

prose plaintiffs motion to extend the deadline to object to a report and recommendation).
As no objections were filed, the Court has reviewed the Report for clear error and found
none. The Report is thus adopted in its entirety and the motion to dismiss is granted. As the
deficiencies in the SAC "cannot be remedied by repleading," this Court finds that amendment
would be futile and dismisses these claims with prejudice. Report at 24. Remaining in this
action, therefore, are (i) Plaintiffs claims against Court Officer Rapaglia for excessive force,
assault, and battery; and (ii) Plaintiffs claims against Court Officers Tusa and Daley for failure
to intervene in Rapaglia's alleged excessive force. See Dkt. 100 at 6.
The Clerk of Court is respectfully directed to close the motion at docket entry 78.
SO ORDERED.
Dated:

July 1, 2016
New York, New York

Ron ie Abrams
United States District Judge

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