Opinion
22 Civ. 1302 (JPC) (SLC)
01-11-2024
DAVID K. PORATH, Plaintiff, v. CITY OF NEW YORK et al., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
JOHN P. CRONAN, UNITED STATES DISTRICT JUDGE
Plaintiff David K. Porath brings this action against the City of New York, Bellevue Men's Shelter System (“Bellevue”), and New York State Parole Officer Obumneme Akaneme under 42 U.S.C. § 1983 and New York State law. Dkts. 2 (original complaint), 14 (“Amended Complaint”). Defendants moved to dismiss the Amended Complaint on June 2, 2023. Dkts. 61 (Bellevue and City motion), 63 (Akaname motion). On December 21, 2023, the Honorable Sarah L. Cave, to whom this case has been referred for general supervision of pretrial proceedings and for dispositive motions, Dkt. 13, issued a Report and Recommendation, recommending that the Court grant these motions and (1) dismiss Plaintiff's claims against Bellevue with prejudice, (2) dismiss the Section 1983 claims against the City of New York and Akaneme without prejudice, and (3) decline to exercise supplemental jurisdiction over Plaintiff's New York law claims and thereby dismiss them without prejudice. Dkt. 76 (“Report & Recommendation”); see id. at 35.
A district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge” in a Report and Recommendation. 28 U.S.C. § 636(b)(1)(C). If a party submits a timely objection to any part of the magistrate judge's disposition, the district court will conduct a de novo review of the contested section. Fed.R.Civ.P. 72(b)(3); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). If no objections are made, the Court reviews the Report and Recommendation for clear error. See, e.g., Wilds v. United Parcel Serv., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003).
The Report and Recommendation, citing both Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), advised the parties that they had fourteen days from service of the Report and Recommendation to file any objections, and warned that failure to timely file such objections would result in waiver of any right to object. Report & Recommendation at 36. No objections have been filed and the time for making any objections has passed. The parties have therefore waived the right to object to the Report and Recommendation or to obtain appellate review. See Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); see also Caidor v. Onondaga Cnty., 517 F.3d 601 (2d Cir. 2008).
Notwithstanding this waiver, the Court has conducted a de novo review of the Report and Recommendation, and finds it to be well reasoned and its conclusions well founded. Accordingly, the Court adopts the Report and Recommendation in its entirety and dismisses the Amended Complaint without prejudice, except for the claims against Bellevue, which are dismissed with prejudice. The Court also adopts Judge Cave's recommendation to grant Plaintiff leave to amend under Federal Rule of Civil Procedure 15 as to the claims dismissed without prejudice. See Report & Recommendation at 34-35. Should he choose to do so, Plaintiff shall file a second amended complaint by February 12, 2024. If Plaintiff does not file a second amended complaint by February 12, 2024, or obtain an extension of time to do so by that date, the Court will dismiss this case and direct the Clerk of the Court to close this case without further notice.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
The Clerk of Court is respectfully directed to close Docket Numbers 61 and 63, and further to mail a copy of this Order to Plaintiff.
SO ORDERED.