Portillo v. Aponte et al

Filing 38

ORDER ADOPTING REPORT AND RECOMMENDATION. Defendants' motion to dismiss is GRANTED and Plaintiff is given leave to file a second amended complaint. As noted above, Plaintiff has already filed a second amended complaint. The Court will issue a ne w referral to Magistrate Judge Gorenstein relative to Plaintiff's second amended complaint. The Clerk of Court is respectfully requested to close the open motion at docket entry 23. The Clerk of Court is further requested to mail a copy of this Order and the R&R to Plaintiff and to note mailing on the docket. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purposes of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that appellant demonstrates good faith when seeking review of a non-frivolous issue). SO ORDERED. Re 34 Report and Recommendations, 23 Motion to Dismiss filed by Manuel Aldir, Jennifer Webb. (Signed by Judge Valerie E. Caproni on 1/17/2018) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JAMIE PORTILLO,
:
:
:
Plaintiff,
:
:
-against:
:
JENNIFER WEBB, MANUEL ALDIR, and
:
LYCHA GASANOV,
:
Defendants. :
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VALERIE CAPRONI, United States District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 1/17/2018

16-CV-4731 (VEC)(GWG)
ORDER ADOPTING REPORT &
RECOMMENDATION

Plaintiff Jamie Portillo, proceeding pro se, alleges that excessive force was used against
him while he was incarcerated at the Anna M. Kross facility on Rikers Island in October 2015.
Am. Compl. (Dkt. 17) at 4. Plaintiff alleges that he suffered a “minor stroke” on October 13,
2015. Am. Compl. at 4. The Defendants, corrections officers at the Kross facility, responded to
Plaintiff and escorted him to the Kross medical clinic and then to the East Elmhurst Hospital.
Am. Compl. at 4. Plaintiff alleges that defendant Webb twice forced him to stand and attempt to
walk, causing him to fall and injure himself. Am. Compl. at 4. Seeking redress for injuries
sustained in his falls, Plaintiff alleges claims for excessive force against Webb and failure to
intervene against defendants Aldir and Gasanov.
The Defendants moved to dismiss on the grounds that Portillo’s amended complaint does
not plausibly allege that excessive force was used by Webb or that the other defendants had a
duty to intervene and failed to do so. Dkts. 23, 24. The Court referred this case to Magistrate
Judge Gorenstein for general pretrial and for preparation of a report and recommendation on any
dispositive motions. Dkt. 10; see also Dkt. 27 (amended order of referral). The Defendants filed

their motion to dismiss on March 3, 2017. Dkts. 23, 24. Portillo opposed the motion on May 11,
2017. Dkt. 29. Defendants replied on June 1, 2017. Dkt. 32.
On October 12, 2017, Magistrate Judge Gorenstein issued a report and recommendation
(the “R&R”). Dkt. 34. Judge Gorenstein concluded that the Amended Complaint did not
sufficiently allege facts from which the Court could infer that it was objectively unreasonable for
defendant Webb to force Portillo to stand and walk. R&R at 10-11. Judge Gorenstein also
found that the Amended Complaint did not allege that defendants Aldir and Gasanov had a
realistic opportunity to intervene and prevent excessive force from being used. R&R at 12.
Judge Gorenstein recommended that the Court grant Portillo leave to amend. R&R at 12-13. In
lieu of filing objections to the R&R, Plaintiff filed a second amended complaint.1 Dkt. 37.
DISCUSSION
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) (1)(C). When no objections are made to a magistrate judge’s report, a district court may
adopt the report so long as “there is no clear error on the face of the record.” Phillips v. Reed
Grp., Ltd., 955 F. Supp. 2d 201, 211 (S.D.N.Y. 2013) (citing Nelson v. Smith, 618 F. Supp. 1186,
1189 (S.D.N.Y. 1985)). Failure to file timely objections to the magistrate judge’s report
constitutes a waiver of those objections in the district court and on later appeal to the United
States Court of Appeals. See Small v. Sec’y of Health & Human Servs., 892 F. 2d 15, 16 (2d Cir.

1
On November 13, 2017, in response to Plaintiff’s request for more time to object to the R&R, the Court
extended until November 27, 2017, Plaintiff’s deadline to file objections. Dkt. 36. Because Plaintiff’s amended
complaint had not yet been dismissed, the Court did not set a deadline for Plaintiff to file a second amended
complaint. Nonetheless, Plaintiff filed his second amended complaint on November 28, 2017, and did not file any
objections to the R&R.

1989) (per curiam); see also Thomas v. Arn, 474 U.S. 140, 149–50 (1985) (holding that Section
636 does not require review of a magistrate’s findings if no party objects).
Because no objections to the R&R were filed, the Court reviews for “clear error.”
Phillips, 955 F. Supp. 2d at 211. Upon careful review, the Court finds no clear error in
Magistrate Judge Gorenstein’s well-reasoned decision. Accordingly, the Court adopts the R&R
in full.
CONCLUSION
Defendants’ motion to dismiss is GRANTED and Plaintiff is given leave to file a second
amended complaint. As noted above, Plaintiff has already filed a second amended complaint.
The Court will issue a new referral to Magistrate Judge Gorenstein relative to Plaintiff’s second
amended complaint.
The Clerk of Court is respectfully requested to close the open motion at docket entry 23.
The Clerk of Court is further requested to mail a copy of this Order and the R&R to Plaintiff and
to note mailing on the docket.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith and therefore in forma pauperis status is denied for the purposes of an
appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that appellant
demonstrates good faith when seeking review of a non-frivolous issue).
SO ORDERED.
_________________________________
____________________________
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Date: January 17, 2018
New York, New York

VALERIE CAPRONI
United States District Judge