Summary
In Salcedo, while the court did not say so explicitly, the defendant presumably diverted the drugs to improper purposes: "[T]he prescriptions were issued in the name of a patient who was not under the direct care of the defendant," and "the address listed by the defendant on each prescription was not the proper address for the patient; the address listed was in Queens, New York, but the purported patient was living in the Philippines throughout the time when the prescriptions were written."
Summary of this case from United States v. AhujaOpinion
Case No. 02-CV-1095 (FB) (VVP)
February 19, 2003
ROSEANNE SCHILL, ELLIOT M.SCHACHNER, NY, New York, for Plaintiff
ROSLYNN R. MAUSKOPF, ESQ. New York, NY, for Defendant
MEMORANDUM AND ORDER
On November 27, 2002, the Court adopted Magistrate Judge Pohorelsky's Report and Recommendation ("R R") to enter default judgment against defendant. The Court then referred the matter to Magistrate Judge Pohorelsky for determination of the relief to be granted plaintiff. In his January 29, 2003 R R, Magistrate Judge Pohorelsky recommended that the Court order defendant to pay a $25,600 civil penalty, and enter an injunction prohibiting "defendant from distributing, dispensing, or administering any controlled substance by any means, including the writing of prescriptions, with the terms `distribute,' `dispense', `administer, and `controlled substance' defined in the manner set forth in 21 U.S.C. § 802." United States v. Salcendo, 02-CV-1095 (E.D.K Y. Jan. 29, 2003). The R R clearly stated that the failure to file objections within ten days would waive the right to appeal the district court order. See 28U.S.C. § 636(b)(1). Defendant has not objected to the R R.
"If either party objects to the magistrate judge's recommendations, a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." United States v. Tortora, 30 F.3d 334, 337 (2d Cir 1994) (internal quotations omitted). Generally, if clear notice has been given of the consequences of failure to object, and there are no objections, the district court may adopt the report and recommendation without de novo review. See Thomas v. Am, 474 U.S. 140, 149-50 (1985); see also Spence v. Superintendent, Great Meadow Correctional Facility, 219 K3d 162, 174 (2d Cir. 2000) ("Failure to timely object to a report generally waives any further judicial review of the findings contained in the report."); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992). However, the Court will excuse the failure to object and conduct a de novo review if it appears after reading the R R that the magistrate judge may have committed plain error in ruling against the defaulting party. See Spence, 219 F.3d at 174.
Here, there is nothing contained on the face of the R R suggesting plain error. Accordingly, the Court adopts the R R without de novo review.
SO ORDERED.
A Memorandum and Order of Honorable Frederic Block, United States District Judge, having been filed on February 24, 2003, adopting the Report and Recommendation of Magistrate Judge Viktor V. Pohorelsky, issued on January 29, 2003, ordering the defendant to pay a $25,600.00 civil penalty, and enter an injunction prohibiting "defendant from distributing, dispensing, or administering any controlled substance by any means, including the writing of prescriptions, with the terms `distribute,' `administer,' and `controlled substance' as defined in the manner set forth in 21 U.S.C. § 802"; it is
ORDERED and ADJUDGED that the Report and Recommendation of Magistrate Judge Viktor V. Pohorelsky is adopted; and that judgment is hereby entered ordering the defendant, Luzviminda Salcedo to pay a $25,000.00 civil penalty, and enter an injunction prohibiting "defendant from distributing, dispensing, or administering any controlled substance by any means, including the writing of prescriptions, with the terms `distribute' `administer,' and `controlled substance' as defined in the manner set forth in 21 U.S.C. § 802."