Levinson v. Federal Bureau of Prisons Metropolitan Corrections Center-NY Warden

Filing 60

ORDER ADOPTING REPORT & RECOMMENDATION for 36 Motion to Dismiss filed by United States of America/Bureau of Prisons/ Metropolitan Corr. Center - New York, Yoon Kang, Correction Officer Torres, Mandeep Singh, 58 Report and Recommendation . IT IS HEREBY ORDERED that the Court ADOPTS the R&R in full. Defendants' motion is GRANTED in its entirety. All claims are hereby DISMISSED with prejudice, except for Plaintiff's state law tort claims pursuant to the FTCA, for which t he United States is the only proper defendant and should be substituted in place of all other defendants. Because the R&R gave the parties adequate warning, see R&R at 28, the failure to file any objections to the R&R precludes appellate review o f this decision. See Mario v. P & C Food Markets, 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.") (citation omitted). Because appellate review is precluded, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good fai th, and, therefore, permission to proceed in forma pauperis for purposes of appeal is denied. IT IS FURTHER ORDERED that the Clerk of Court is respectfully directed to terminate Defendants Mandeep Singh; Correction Officer Torres; Yoon Kang; and co mbined Defendant United States of America, Federal Bureau of Prisons, Metropolitan Corrections Center NY. The Clerk of Court is respectfully directed to substitute Defendant United States of America in place of Defendant United States of America, F ederal Bureau of Prisons, Metropolitan Corrections Center NY. IT IS FURTHER ORDERED that Clerk of Court is respectfully directed to terminate the open motion at Docket 36. The Clerk is further directed to mail a copy of this Order to the pro se Plaintiff and to note the mailing on the docket. SO ORDERED. United States of America added. Correction Officer Torres ((female)), United States of America/Bureau of Prisons/ Metropolitan Corr. Center - New York, Yoon Kang (Physicians Assistant (MCC-NY)) and Mandeep Singh (Physicians Assistant (MCC-NY)) terminated. (Signed by Judge Valerie E. Caproni on 3/28/2022) (mml) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 3/28/22

NIKOLAY LEVINSON,
Plaintiff,
-against-

20-CV-7375 (VEC)

UNITED STATES OF AMERICA,
FEDERAL BUREAU OF PRISONS,
METROPOLITAN CORRECTIONS
CENTER - NEW YORK, MANDEEP
SINGH, YOON KANG, AND
CORRECTIONAL OFFICER TORRES,

ORDER ADOPTING REPORT &
RECOMMENDATION

Defendants.
VALERIE CAPRONI, United States District Judge:
WHEREAS on September 10, 2020, Plaintiff Nikolay Levinson, proceeding pro se,
brought this action pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b),
2671 et seq., Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and common law
negligence under New York law, asserting that, following a “melee” at the Metropolitan
Correctional Center (“MCC”) where he was housed as a prisoner, he slipped on a wet floor and
received inadequate medical care for a resulting foot injury, see generally Compl., Dkt. 1;
WHEREAS on October 27, 2020, Plaintiff filed an Amended Complaint, see Am.
Compl., Dkt. 4;
WHEREAS on January 29, 2021, the Court referred the case to Magistrate Judge
Katharine Parker for general pretrial supervision and for the preparation of a Report and
Recommendation (“R&R”) on any motions that arose, see Order of Reference, Dkt. 11;
WHEREAS on September 20, 2021, Defendants filed a motion to dismiss the Amended
Complaint except for claims against the individual Defendants and the MCC under the FTCA,

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with those Defendants replaced by the United States as the sole defendant, see Not. of Mot., Dkt.
36; Defs. Mem., Dkt. 37 at 1–2;
WHEREAS Plaintiff opposed the motion, see Dkt. 51;
WHEREAS on March 7, 2022, Judge Parker issued an R&R recommending that
Defendants’ motion be granted in its entirety, R&R, Dkt. 58 at 1, 11;
WHEREAS Judge Parker agreed with Defendants that they are entitled to sovereign
immunity for Plaintiff’s constitutional tort claims and that Plaintiff’s FTCA claims can proceed
only against the United States, see id. at 9–11;
WHEREAS in the R&R, Judge Parker notified the parties that, pursuant to 28 U.S.C. §
636(b)(1) and Fed. R. Civ. P. 72(b), Plaintiff had 17 days to file written objections to the R&R’s
findings and Defendants had 14, with related response deadlines, id. at 11–12;
WHEREAS Judge Parker further noted that failure to file objections would result in both
the waiver of objections and the preclusion of appellate review, id. at 12 (in bold font);
WHEREAS neither party filed objections;
WHEREAS in reviewing an R&R, 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);
WHEREAS when, as here, no party objects to the R&R, the Court may accept the R&R
provided that “there is no clear error on the face of the record,” Heredia v. Doe, 473 F. Supp. 2d
462, 463 (S.D.N.Y. 2007) (quoting Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985));
see also Fed. R. Civ. P. 72(b) advisory committee’s note;

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WHEREAS an error is clear when the reviewing court is left with a “definite and firm
conviction that a mistake has been committed,” see Cosme v. Henderson, 287 F.3d 152, 158 (2d
Cir. 2002) (quoting McAllister v. United States, 348 U.S. 19, 20 (1954)); and
WHEREAS careful review of the R&R reveals that there is no clear error;
IT IS HEREBY ORDERED that the Court ADOPTS the R&R in full. Defendants’
motion is GRANTED in its entirety. All claims are hereby DISMISSED with prejudice, except
for Plaintiff’s state law tort claims pursuant to the FTCA, for which the United States is the only
proper defendant and should be substituted in place of all other defendants. 1
Because the R&R gave the parties adequate warning, see R&R at 28, the failure to file
any objections to the R&R precludes appellate review of this decision. See Mario v. P & C Food
Markets, 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.”) (citation omitted). Because
appellate review is precluded, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this Order would not be taken in good faith, and, therefore, permission to proceed in
forma pauperis for purposes of appeal is denied.
IT IS FURTHER ORDERED that the Clerk of Court is respectfully directed to terminate
Defendants Mandeep Singh; Correction Officer Torres; Yoon Kang; and combined Defendant
United States of America, Federal Bureau of Prisons, Metropolitan Corrections Center – NY.
The Clerk of Court is respectfully directed to substitute Defendant United States of America in

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Although Judge Parker recommended that Defendants’ motion be granted “without prejudice”, see R&R at
11, the Court construes this as a typographical error in light of Judge Parker’s discussion of when leave to amend is
appropriate, id. at 7. As Judge Parker notes, leave to amend should not be granted in the face of “futility”, and
granting leave to amend in this case would be futile. Id. at 7 (citation omitted). If this was not a typographical error,
the Court disagrees with that portion of Judge Parker’s recommendation and dismisses the relevant claims with
prejudice.

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place of Defendant United States of America, Federal Bureau of Prisons, Metropolitan
Corrections Center – NY.
IT IS FURTHER ORDERED that Clerk of Court is respectfully directed to terminate the
open motion at Docket 36. The Clerk is further directed to mail a copy of this Order to the pro
se Plaintiff and to note the mailing on the docket.

SO ORDERED.
_____________________________
_________ _
___
____
_
_____________________________
CAPRONI
R
VALERIE CAPRONI
United States District Judge

Date: March 28, 2022
New York, New York

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