Auguste v. Department of Corrections et al

Filing 79

OPINION AND ORDER re: 43 MOTION to Dismiss . filed by Devon M. Radlin, 58 SECOND LETTER MOTION for Leave to File Seeking Approval/Authorization for the Court to Grant an Application to Amend Project Renewal's Answer Amend ed Answer addressed to Magistrate Judge Gary Stein from JEFFREY K. VAN ETTEN dated August filed by Project Renewal, 33 MOTION to Dismiss . filed by Sim and DePaula, 19 LETTER MOTION for Conference re: Sim & DePaola, LL P's Anticipated Motion to Dismiss addressed to Judge Paul A. Engelmayer from Sameer Nath dated May 3, 2024. filed by Sim and DePaula, 29 MOTION to Dismiss . filed by Ilissa Brownstein. Accordingly, the Court grants the moti ons to dismiss by Radlin, Brownstein, DePaola, and Sim & DePaola. The Court directs the remaining parties to contact Judge Stein's chambers, by April 4, 2025, to schedule an initial pretrial conference. See Dkt. 8 (referral for general pretr ial management). The Court respectfully directs the Clerk of the Court to mail a copy of this decision to Auguste at the address on file, and to close all pending motions. SO ORDERED. Sim and DePaula (Last One), Ilissa Brownstein and Devon M. Radlin terminated. (Signed by Judge Paul A. Engelmayer on 3/6/2025) (tg)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JEAN R. AUGUSTE, JR.,
-v-

Plaintiff,

24 Civ. 921 (PAE) (GS)
OPINION & ORDER

DEVON RADLIN et al.,
Defendants.
PAUL A. ENGELMAYER, District Judge:

On February 6, 2024, plaintiff Jean R. Auguste, Jr., prose, filed this action under 42
U.S.C. § 1983. See Dkt. 1 (Complaint). His Complaint alleges, inter alia, that the City ofNew
York violated his federal constitutional rights while he was incarcerated at the Otis Bantum
Correctional Center on Rikers Island. 1 It also brings state law claims for legal malpractice
against Auguste's former attorneys, who had represented him in connection with his claims
against the City of New York: Devon M. Radlin, Ilissa Brownstein, Samuel C. DePaola
("DePaola"), and the law firm of Sim & DePaola, LLP ("Sim & DePaola," and collectively with
the other former attorneys, the "attorney defendants"). 2

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The Complaint also named as defendants the New York City Department of Correction
("DOC"), New York City Department of Homeless Services ("DHS"), Captain Alliyah Kelly,
Officers John Caruso and Seba Osborne, and Project Renewal, Inc. See Dkt. 1. On March 11,
2024, the Court dismissed Auguste's claims against DOC and DHS, because they are not suable
entities. See Dkt. 9 at 2; see also N.Y. City Charter ch. 17, § 396 ("All actions and proceedings
for the recovery of penalties for the violation of any law shall be brought in the name of the city
of New York and not in that of any agency, except where otherwise provided by law.").
Solicitous of Auguste's prose status, however, the Court liberally construed the Complaint as
bringing a claim, instead, against the City of New York. See Dkt. 9 at 2.
2 The Court liberally construes the Complaint to allege a claim against Samuel C. DePaola, in

addition to his law firm, Sim & DePaola. Although the Complaint identifies only Sim &
DePaola as a defendant in the caption and refers to the firm throughout, see, e.g., Dkt. 1 at 1, 22,

Currently pending are the attorney defendents' motions to dismiss the legal malpractice
claims, under Federal Rule of Civil Procedure 12(b)(6). On June 17, 2024, Brownstein and
DePaola and Sim & DePaola moved to dismiss the respective claims against them. Dkts. 29
(Brownstein), 33 (DePaola and Sim & DePaola). On June 25, 2024, Radlin followed suit.
Dkt. 43. The Court referred these three motions to United States Magistrate Judge Gary Stein.

See Dkt. 20 (May 7, 2024 order referring anticipated motions to dismiss).
On February 11, 2025, Judge Stein issued a Report and Recommendation to this Court,
which recommended that the Court grant the attorney defendants' motions to dismiss. See
Dkt. 77 (the "Report"). The Report found that the Complaint had not plausibly pied a claim for
legal malpractice against any attorney defendant, for multiple independent reasons as to each.

See id. at 15-17 (DePaola and Sim & DePaola), 18-19 (Radlin), 20-21 (Brownstein). The
Report stated that "the parties shall have fourteen days, inclusive of weekends and holidays, from
the date of this Report and Recommendation to file written objections thereto," pursuant to 28
U.S.C. § 636(b)(l) and Rule 72(b) of the Federal Rules of Civil Procedure. Id. at 24.
Neither party has filed objections. The Court incorporates by reference the summary of
the facts provided in the Report. For the following reasons, the Court adopts the Report's
recommendation in its entirety.

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)(l)(C). "To accept those portions of the report to which no timely objection has

24, in one instance, it references DePaola, id. at 4. The motion to dismiss at docket 33 is filed on
behalf of both DePaola and Sim & DePaola, see Dkt. 33, and as discussed below, seeks dismissal
of the claims against both.
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been made, a district court need only satisfy itself that there is no clear error on the face of the
record." Ruiz v. Citibank, N.A., No. 10 Civ. 5950, 2014 WL 4635575, at *2 (S.D.N.Y. Aug. 19,
2014) (quoting King v. Greiner, No. 2 Civ. 5810, 2009 WL 2001439, at *4 (S.D.N.Y. July 8,
2009)); see also, e.g., Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003).
As no party has submitted objections to the Report, review for clear error is appropriate.
Careful review of Judge Stein's thorough and well-reasoned Report does not reveal any facial
error in its conclusions; the Report is therefore adopted in its entirety. Because the Report
explicitly states that "the parties shall have fourteen days to file written objections" and that
"failure to file these timely objections will result in a waiver of those objections for purposes of
appeal," Report at 24, the parties' failure to object operates as a waiver of appellate review. See

Caidor v. Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008) (citing Small v. Sec'y of Health &
Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiarn)).
CONCLUSION
Accordingly, the Court grants the motions to dismiss by Radlin, Brownstein, DePaola,
and Sim & DePaola. The Court directs the remaining parties to contact Judge Stein's chambers,
by April 4, 2025, to schedule an initial pretrial conference. See Dkt. 8 (referral for general
pretrial management).
The Court respectfully directs the Clerk of the Court to mail a copy of this decision to
Auguste at the address on file, and to close all pending motions.

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SO ORDERED.
Paul A. Engelrnayer 1
/
United States District Judge
Dated: March 6, 2025
New York, New York

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