Opinion
14-CV-5606 (JFB)(SIL)
01-28-2016
JUSTIN ZAMANI, Plaintiff, v. NASSAU COUNTY, NASSAU COUNTY SHERIFF'S DEPARTMENT, and ARMOR HEALTH SERVICES, Defendants.
ORDER :
Before the Court is a Report and Recommendation ("R&R") from Magistrate Judge Locke, advising the Court to grant the defendants' motion to dismiss the plaintiff's claims under Federal Rule of Civil Procedure 12(b)(6). The R&R instructed that any objections to the R&R be submitted within fourteen (14) days of service of the R&R. (See R&R, dated December 16, 2015, at 16.) The date for filing any objections has since 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 dismisses the plaintiff's claims with leave to file an amended complaint as against all defendants other than the NCSD and NCCC.
Where there are no objections, 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 and HEREBY ADOPTS the well-reasoned and thorough R&R in its entirety.
IT IS HEREBY ORDERED that defendants' motion to dismiss plaintiff's claims is granted and plaintiff is granted leave to file an amended complaint as against all defendants other than the NCSD and NCCC. If plaintiff intends to pursue his claims, he may file his second amended complaint within thirty days of this Order. Plaintiff is warned that if he fails to file an amended complaint within thirty days, the Court may dismiss this case with prejudice, without further notice, for failure to prosecute, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
SO ORDERED.
/s/_________
JOSEPH F. BIANCO
UNITED STATES DISTRICT JUDGE Dated: January 28, 2016
Central Islip, New York