Smith et al v. City of Buffalo et al

Filing 62

DECISION AND ORDER. Please note: This docket entry does not contain every detail of this order. It is your responsibility to read and download the pdf to this document for future reference. The Court grants, in part, Defenda nts' 40 motion with respect to Defendant Derenda and dismisses claims against him. The Clerk of Court shall terminate Defendant Derenda from this case. The Court holds in abeyance its review of the remainder of the R&R as specified, and does n ot resolve Defendants' objections to the R&R at this time. The Court orders the remaining parties to re-commence mediation pursuant to Section 2.1.B of this District's Alternative Dispute Resolution Plan. Motions for relief from this order due 1/21/2021. Stipulation selecting a mediator, if necessary, due 1/28/2021. First mediation session pursuant to this order shall occur by 2/26/2021. Joint status report due 3/8/2021. Signed by Hon. John L. Sinatra, Jr. on 1/7/2021.(KLH)-CLERK TO FOLLOW UP-

Case 1:17-cv-00639-JLS-MJR Document 62 Filed 01/07/21 Page 1 of 4

DISTgy^

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOSEPH SMITH and RONALD
LOEWENGUj^

RAISER,

D!STR\<3
Plaintiffs.

17-CV-639 (JLS)(MJR)
V.

Cm^ OF BUFFALO, SHAW^N ADAI\IS,
JOE COOK, DANIEL DERENDA,
Defendants.

DECISION AND ORDER

Plaintiffs Joseph Smith and Ronald Raiser commenced this action against:
Defendants City of Buffalo, Shawn Adams, Joe Cook, and Daniel Derenda on July

12, 2017, raising claims under 42 U.S.C. § 1983 related to the shooting and death of
a pet dog in Summer 2014.^ See Dkts. 1, 23.^ After answering the amended

complaint on June 7, 2018, Defendants moved to dismiss for failure to state a claim
on October 30, 2019. Dkts. 25, 26, 27, 40. Plaintiffs opposed the motion to dismiss

on December 2, 2019. Dkt. 45. And Defendants replied in further support of their
motion on December 13, 2019. Dkt. 46.

'The Court refers only to the remaining claims and defendants relevant to this
decision and order.

- Plaintiffs filed an amended complaint on May 17, 2018. See Dkt. 23.

Case 1:17-cv-00639-JLS-MJR Document 62 Filed 01/07/21 Page 2 of 4

This Court'^ referred this case to United States Magistrate Judge Michael J.
Roemer for all proceedings under 28 U.S.C. §§ G36(b)(l)(A) and (B). Dkt. 10. On
September 29, 2020, Judge Roemer issued a Report and Recommendation CJl&R").

recommending that this Court grant Defendants' motion' in part, with respect to all
claims against Defendant Derenda, and otherwise deny Defendants' motion. Dkt.
57, at 1, 18.

Defendants objected to the R&R on October 13. 2020. Dkt. 58. Plaintiffs

responded in opposition on October 23, 2020, but did not file their own objections.
Dkt. 60. They therefore did not object to the recommendation that the Court grant
Defendants' motion with respect to Defendant Derenda. See id. Defendants replied
m further support of their objections on November 3. 2020. Dkt. 61.
A district court may accept, reject, or modify the findings or recommendations
of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). It must
conduct a de novo review of those portions of a magistrate judge's recommendation

to which a party objects. 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

Hon. Lawrence J. Vilardo, who was originally assigned to this case, entered the
dispositive referral to Judge Roemer. Dkt. 10. On January 6, 2020, this case was
reassigned to the undersigned. Dkt. 49.

•' Judge Roemer converted Defendants' motion to dismiss for failure to state a claim
to a motion for summary judgment. See Dkt. 57, at 1, 3 n.2. Defendants objected to
this conversion. See Dkt. 58, at 3-4. As explained below, the Court does not resolve
that objection at this time.

Case 1:17-cv-00639-JLS-MJR Document 62 Filed 01/07/21 Page 3 of 4

review the recommendation of a magistrate judge to which no objections are raised.
See Thomas v. Arn, 474 U.S. 140, 149-50 (1985),

The Court studied the R&R and the briefing on Defendants' objections.
Based on that review and absent any objections, the Court accepts and adopts
Judge Roemer's recommendation to grant Defendants' motion with respect to
Defendant Derenda, and dismisses all claims against him.
The Court's review of the remainder of the R&R—including its de nova
review of Defendants' objections—is not yet complete. For that reason, and because
the Court concludes that additional mediation could foster settlement of the

remaining claims, the Court orders the parties to re-commence mediation and holds
its review of the remaining portions of the R&R in abeyance.
CONCLUSION

For the reasons stated above and in the R&R, the Court grants, in part.
Defendants' motion (Dkt. 40) with respect to Defendant Derenda and dismisses all
claims against him. The Clerk of Court shall terminate Defendant Derenda from
this case.

The Court holds in abeyance its review of the remainder of the R&R—

specifically, the recommendations with respect to Defendants' motion regarding the

claims against Defendants City of Buffalo, Cook, and Adams. The Court does not
resolve Defendants' objections to the R&R at this time.

Case 1:17-cv-00639-JLS-MJR Document 62 Filed 01/07/21 Page 4 of 4

The Court orders the remaining parties—Plaintiffs and Defendants City of
Buffalo, Cook, and Adams—to re-commence mediation pursuant to Section 2.1.B of
this District’s Alternative Dispute Resolution Plan. The following deadlines apply:


Any motion for relief from this order to re-commence mediation is due
by January 21, 2021;



A stipulation selecting the mediator, if necessary, is due by January
28, 2021; and



The first mediation session pursuant to this order shall occur by
February 26, 2021.

The parties shall file a joint status report by March 8, 2021.
SO ORDERED.
Dated:

January 7, 2021
Buffalo, New York

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