Jenkins v. Colvin

Filing 18

ORDER ADOPTING 17 REPORT AND RECOMMENDATIONS denying plaintiff's 11 Motion for Judgment on the Pleadings or, in the alternative, to remand the matter for further development of the record; granting defendant's 14 Motion for Judgment on the Pleadings and dismissing the 1 Complaint. FURTHER, the Clerk of Court is instructed to close this file. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 11/28/2016. (CMD)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________
TAMEKA M. JENKINS,
Plaintiff,

14-CV-247(LJV)(LGF)
ORDER

v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
__________________________________

On July 8, 2014, the Court (Hon. Richard J. Arcara) referred this case to United
States Magistrate Judge Leslie J. Foschio for all proceedings pursuant to 28 U.S.C. §
636(b)(1)(B). Docket Item 7. On November 23, 2015, this case was reassigned from
Judge Arcara to the undersigned. Docket Item 16.
On October 3, 2014, the plaintiff moved for judgment on the pleadings, or, in the
alternative, to remand the matter for further development of the record. Docket Item 11.
On January 5, 2015, the defendant responded to the plaintiff’s motion and moved for
judgment on the pleadings. Docket Item 14. And on January 23, 2015, the plaintiff
responded to the defendant’s response. Docket Item 15.
On October 4, 2016, Judge Foschio issued a Report and Recommendation
finding that the plaintiff’s motion should be denied and that the defendant’s motion
should be granted. Docket Item 17. The parties did not object to the Report and
Recommendation, and the time to do so now has expired. See 28 U.S.C. 636(b)(1);
Fed. R. Civ. P. 72(b)(2).

A district court may accept, reject, or modify, in whole or in part, the findings or
recommendation of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
A district court must conduct a de novo review of those portions of a magistrate judge’s
recommendation to which objection is made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b)(3). But neither 28 U.S.C. § 636 nor Federal Rule of Civil Procedure 72 requires a
district court to review the recommendation of a magistrate judge to which no objections
are addressed. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985).
Although not required to do so in light of the above, this Court nevertheless has
reviewed Judge Foschio’s Report and Recommendation as well as the parties’
submissions to him. Based on that review and the absence of any objections, the Court
accepts and adopts Judge Foschio’s recommendation to deny the plaintiff’s motion and
grant the defendant’s motion for judgment on the pleadings.
For the reasons stated above and in the Report and Recommendation, the
plaintiff’s motion for judgment on the pleadings or, in the alternative, to remand the
matter for further development of the record (Docket Item 11) is DENIED; the
defendant’s motion for judgment on the pleadings (Docket Item 14) is GRANTED; the
complaint (Docket Item 1) is dismissed; and the Clerk of the Court is instructed to close
the file.
SO ORDERED.
Dated: November 28, 2016
Buffalo, New York
s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

2