Sheehy v. Wehlage

Full title: ROBERT SHEEHY and SANDRA SHEEHY, et al., Plaintiffs, v. MARY ANN WEHLAGE…

Court: United States District Court, W.D. New York

Date published: Jan 30, 2004

No. 02-CV-592A (W.D.N.Y. Jan. 30, 2004)

Opinion

No. 02-CV-592A.

January 30, 2004

DECISION AND ORDER

RICHARD ARCARA, District Judge

BACKGROUND

Plaintiffs are owners of a dairy farm in Scio, New York, which is located in Allegany County. They allege that the defendants, most of whom are employees of Allegany County, the United States Department of Agriculture, or animal welfare organizations, made false assertions that the plaintiffs' cows were malnourished, and based on those assertions, obtained a warrant to enter plaintiffs' property and seize approximately 115 dairy cows. Plaintiffs further allege that Judge Glee A. Turybury, the Scio Town Justice, improperly authorized the sale of the cows when the plaintiffs could not pay for their care while in the custody of Allegany County. The first twelve claims in the complaint allege various torts and the thirteenth claim alleges a violation of 42 U.S.C. § 1983. The United States filed a motion seeking to be substituted as defendant in place of Thomas David Becker and Gordon Weuthrich with respect to the first twelve claims. Also pending are motions to dismiss the complaint filed by the United States as substituted defendant, Dr. Robert McNeil, Lakewood Veterinary Service,¹ Judge Glee Turybury and defendants Becker and Weuthrich.

1 This entity is named in the complaint as Lake Veterinarian Service.

This matter was referred to the Honorable Victor Bianchini, United States Magistrate Judge, for a Report and Recommendation on the above motions. In his Report and Recommendation dated June 10, 2003, Magistrate Judge Bianchini concluded that (1) the United States should be substituted as defendant on claims one through twelve in place of defendants Becker and Weuthrich, and that claims one through twelve should be dismissed as to the United States because plaintiffs failed to file an administrative claim prior to bringing suit as required under the Federal Tort Claims Act; (2) defendants Becker and Weuthrich's motions to dismiss the thirteenth claim should be denied as a Bivens action is minimally alleged; (3) the thirteenth claim against defendants Robert McNeil and Lakewood Veterinary Services should be dismissed without prejudice and with leave to re-plead because plaintiffs failed to allege state action; and (4) all claims against Judge Glee Turybury should be dismissed on the basis of absolute judicial immunity.

On June 20, 2003, defendants Becker and Weuthrich filed objections to the Report and Recommendation, arguing that the complaint did not state a Bivens action against them because the complaint does not allege that they deprived plaintiffs of a Constitutional right when they were acting in their individual capacities, nor does the complaint allege that they were federal employees at the time of the alleged conduct. Plaintiffs and the other defendants did not object to any portion of the Report and Recommendation. The Court heard oral argument on December 3, 2003.

DISCUSSION

The district court reviews de novo the portions of a Report and Recommendation to which objections have been filed. See 28 U.S.C. § 636(b)(1)(A). If a party fails to object to a portion of a Report and Recommendation, further review is generally precluded. See Mario v. P C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (citing Small v. Sec'y of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)). Upon de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Report and Recommendation.

Plaintiffs' Objections are Waived

On October 28, 2003, the Court issued a scheduling notice, setting November 14, 2003 as the date by which plaintiffs were to respond to defendants' objections, and setting oral argument for December 3, 2003. On November 14, 2003 plaintiffs filed a document entitled "Objection by Plaintiffs to Report and Recommendation dated June 10, 2003," in which plaintiffs assert that Magistrate Judge Bianchini erred in his Report and Recommendation. The Court notes, however, that Magistrate Judge Bianchini's Report and Recommendation clearly stated that objections must be filed within ten days of receipt of the Report and Recommendation, and warned that failure to timely file objections could result in the District Court's refusal to consider the objections. Therefore, to the extent plaintiffs' November 14^th submission contains any objections to Magistrate Judge Bianchini's Report and Recommendation, those objections are waived. See 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b); Local Civil Rule 72.3(a)(2) and 72.3(a)(3).

Defendants Becker's and Weuthrich's Objections

With respect to the objections of defendants Becker and Weuthrich, the Court finds that, assuming as true all facts alleged in the complaint, plaintiffs have stated a Bivens claim against Becker and Weuthrich. Although the complaint does not specifically allege that the defendants were agents or employees of the federal government at the time of the alleged conduct, it is undisputed that Becker and Weuthrich were, in fact, employed by the United States at the time of the conduct alleged.²

2 The Court notes that plaintiffs filed an amended complaint on June 20, 2003 which is essentially identical to the original complaint. Defendants Weuthrich and Turybury filed motions to dismiss and/or for summary judgment with respect to the amended complaint. Those motions were addressed by Magistrate Judge Hugh B. Scott in a Report and Recommendation dated November 12, 2003. Plaintiffs have filed objections to Magistrate Judge Scott's Report and Recommendation for which the Court will schedule oral argument and rule upon prior to directing plaintiffs to file a second amended complaint. The Court also notes that on October 28, 2003, Magistrate Judge Scott stayed all proceedings against defendant Becker pursuant to the Soldiers' and Sailors' Relief Act of 1940, until such time as defendant Becker returns from overseas military service. Defendant Becker did not file any motions with respect to the amended complaint, and thus the November 12, 2003 Report and Recommendation does not implicate the claim alleged against defendant Becker.

CONCLUSION

For the reasons stated in the Report and Recommendation and above, the Report and Recommendation is adopted. All claims against defendant Turybury and claims one through twelve against the United States are dismissed with prejudice. Plaintiffs will be required to amend their complaint in the manner indicated. However, the Court will provide a date for filing the amended complaint once the Court rules on plaintiffs' objections to Magistrate Judge Scott's November 12, 2003 Report and Recommendation. Defendants' response to plaintiffs' objections to the November 12, Report and Recommendation should be filed no later than February 10, 2004, and oral argument on the objections will be heard on February 17, 2004, at 9:00 am.

IT IS SO ORDERED.