Opinion
13-CV-4209 (JFB)(AKT)
02-26-2018
SABAS MARTINEZ, Plaintiff, v. VINCENT F. DEMARCO, Suffolk County Sheriff, CHARLES EWALD, Warden, LIEUTENANT ROLLINS OTTEN, SERGEANT ROBERT PERAINO, SERGEANT KEVIN KELLEY, and SERGEANT DENNIS HORL, Defendants.
ORDER
:
On February 5, 2018, Magistrate Judge A. Kathleen Tomlinson issued a Report and Recommendation (the "R&R," ECF No. 56) recommending that the Court grant the motion to dismiss filed by defendants David Martin and Gregory Schaffer ("defendants"). The R&R was served on plaintiff by UPS overnight delivery on February 6, 2018. (ECF No. 57.) The R&R instructed that any objections to the R&R be submitted within fourteen (14) days of service of the R&R. (R&R at 23.) The date for filing any objections has thus expired, and plaintiff has not filed any objection to the R&R. For the reasons set forth below, the Court adopts the thorough and well-reasoned R&R in its entirety and grants the motion to dismiss as to defendants.
Where there are no objections to a report and recommendation issued by a magistrate judge, the Court may adopt the report and recommendation without de novo review. See Thomas v. Arn, 474 U.S. 140, 150 (1985) ("It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings."); see also Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Where parties receive clear notice of the consequences, failure timely to object to a magistrate's report and recommendation operates as a waiver of further judicial review of the magistrate's decision."); cf. 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(3) (requiring de novo review after objections). However, because the failure to file timely objections is not jurisdictional, a district judge may still excuse the failure to object in a timely manner and exercise its discretion to decide the case on the merits to, for example, prevent plain error. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) ("[B]ecause the waiver rule is non jurisdictional, we 'may excuse the default in the interests of justice.'" (quoting Thomas, 474 U.S. at 155)).
Although plaintiff has waived any objection to the R&R and thus de novo review is not required, the Court has conducted a de novo review of the R&R in an abundance of caution. Having conducted a review of the Complaint, the motion papers, and the applicable law, and having reviewed the R&R de novo, the Court adopts the findings and recommendations contained in the well-reasoned and thorough R&R in their entirety. Accordingly,
IT IS HEREBY ORDERED that the motion to dismiss (ECF No. 46) is granted as to all defendants.
IT IS FURTHER ORDERED that defendants serve a copy of this Order on plaintiff.
SO ORDERED.
/s/_________
JOSEPH F. BIANCO
UNITED STATES DISTRICT JUDGE Dated: February 26, 2018
Central Islip, New York