Neff v. County of Erie, New York et al

Filing 10

DECISION AND ORDER granting 3 Motion to Dismiss; granting 3 Motion for Judgment on the Pleadings; granting 3 Motion to Dismiss for Failure to State a Claim; adopting Report and Recommendations re 8 Report and Recommendations in its entirety. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 5/2/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RICHARD D. NEFF,
Plaintiff,
DECISION and ORDER
No. 1:16-cv-875(MAT)(JJM)

-vsCOUNTY OF ERIE, NEW YORK,
ERIE COUNTY SHERIFF’S DEPARTMENT,
DEPUTY SHERIFF BRADFORD G.
BALLANTYNE, DEPUTY SHERIFF JOHN
DOE 1-10, DEPUTY SHERIFF JANE DOE
said names being fictitious, but
intended to be the
arresting/participating officers
in the incident herein,
Defendants.

I.

Introduction
This

matter

is

before

the

Court

upon

the

Report and

Recommendation (Dkt #8), dated April 4, 2017, issued by Magistrate
Judge Jeremiah J. McCarthy (“the R&R”). For the reasons discussed
herein, the Court adopts the R&R in full.
II.

Factual Background and Procedural History
Richard

D.

Neff

(“Plaintiff”),

represented

by

counsel,

commenced this action in State of New York Supreme Court, County of
Erie, seeking relief against Defendants pursuant to 42 U.S.C.
§ 1983 (“Section 1983”) and New York State tort law. After removing
the action to federal court, Defendants filed their answer and
subsequently moved to dismiss the complaint pursuant to Rules 4(m),
12(b)(6), and 12(c)(3) of the Federal Rules of Civil Procedure.
Plaintiff opposed the motion (Dkt #6), and Defendants filed a reply

(Dkt #7). Judge McCarthy recommended that Defendants’ motion be
granted and that the complaint be dismissed. Objections to the R&R
were due by April 18, 2017, but neither party filed objections. The
case was transferred to the undersigned on May 1, 2017.
III. Standard of Review
To preserve a claim for review by the district court, the
party must make sufficiently specific objections to the R&R. E.g.,
Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002).
“To accept the report and recommendation of a magistrate, to which
no timely objection has been made, a district court need only
satisfy itself that there is no clear error on the face of the
record.” Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)
(citing FED. R. CIV. P. 72(b), Advisory Comm. Notes (when a party
makes no objection, or only general objections to a portion of an
R&R, the district judge reviews it for clear error or manifest
injustice); further citation omitted). When timely objection has
been made to a portion or portions of a magistrate judge’s report,
the district judge must “make a de novo determination” of “any
portion

of

the

.

.

.

disposition

to

which

specific

written

objection has been made. . . .” FED. R. CIV. P. 72(b). The district
judge may then accept, reject or modify, in whole or in part, the
magistrate judge’s proposed findings and recommendations. 28 U.S.C.
§ 636(b)(1).
IV.

Discussion
Having reviewed Judge McCarthy’s thorough R&R, the Court finds

no clear error. The Court agrees that Plaintiff’s purported Section
-2-

1983 claims against the individual defendants are barred by the
Eleventh Amendment insofar as he alleges that the individual
defendants were acting in their official capacity. (See R&R at 3).
With regard to the Sheriff’s Department, Judge McCarthy properly
concluded that since it is not a separate legal entity capable of
being sued individually, the only defendant potentially subject to
Section 1983 liability is the County of Erie. (See R&R at 4).
However,

as

Judge

McCarthy

also

correctly

found,

Plaintiff’s

allegations of municipal liability were too conclusory to withstand
dismissal under FED. R. CIV. P. 12(b)(6). Finally, Judge McCarthy
exercised jurisdiction over the remaining state law claims for
purposes of dismissing them on the merits, in order to prevent
fruitless state court proceedings. The Court agrees with Judge
McCarthy that the state law claims were meritless and/or untimely,
and would not survive in state court. Thus, Judge McCarthy’s
decision to exercise pendent jurisdiction over them was correct.
V.

Conclusion
For the foregoing reasons, the Court adopts the R&R (Dkt #8)

in

full

and

grants

Defendants’

motion

to

dismiss

(Dkt

#3).

Accordingly, Plaintiff’s complaint (Dkt #1) is dismissed in its
entirety. The Clerk of Court is directed to close this case.
SO ORDERED.
S/ Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

May 2, 2017
Rochester, New York
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