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Samuel Tuccio v. U.S. S Security A Ssociates Inc

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


April 17, 2013

SAMUEL TUCCIO, PLAINTIFF,
v.
U.S. S SECURITY A SSOCIATES INC., DEFENDANT.

The opinion of the court was delivered by: Joseph F. Bianco, District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION

JOSEPH F. BIANCO, District Judge: and directing the Clerk of the Court to enter judgment accordingly and close this case.

Pro se plaintiff Samuel Tuccio ("plaintiff" or "Tuccio") brought this action After the Court issued its March 18, against U.S. Security Associates Inc. 2013 Order adopting the R&R, however, it ("defendant"), alleging race discrimination received plaintiff's objections to the R&R. in violation of Title VII of the Civil Rights By Order dated March 20, 2013, the Court Act of 1964 ("Title VII") and the New York informed the parties that it would consider State Human Rights Law ("NYSHRL"), plaintiff's written objections. The Court also N.Y. Exec. L. § 290 et seq. Defendant provided defendant with an opportunity to subsequently filed a motion for summary respond to plaintiff's objections. Defendant judgment pursuant to Rule 56 of the Federal subsequently filed a letter with the Court, Rules of Civil Procedure. dated April 4, 2013, responding to plaintiff's objections to the R&R. Thus, On February 27, 2013, Magistrate Judge notwithstanding the March 18, 2013 Order, Brown issued a Report and the Court is considering the matter de novo. Recommendation ("R&R"), recommending that defendant's motion for summary For the reasons that follow, having judgment be granted in its entirety. By Order considered the parties' submissions, as well dated March 18, 2013, this Court adopted as having reviewed the entire R&R de novo the R&R in its entirety, thereby granting (with plaintiff's objections), the Court defendant's motion for summary judgment adopts Judge Brown's thorough and well-reasoned R&R in its entirety.

I. PROCEDURAL HISTORY dated March 20, 2013, the Court informed the parties that it would consider plaintiff's

Plaintiff filed his complaint on April 14, objections. The Court also directed 2010. On July 8, 2010, defendant filed a defendant to respond to plaintiff's motion to dismiss the complaint. Plaintiff objections, if it wished to do so, no later filed an opposition to defendant's motion to than April 4, 2013. By letter dated April 4, dismiss on August 9, 2010, and defendant 2013, defendant responded to plaintiff's filed a reply in further support of its motion objections. The Court has fully considered on August 23, 2010. On February 8, 2011, the parties' submissions de novo. the Court held oral argument on defendant's motion and orally denied defendant's II. STANDARD OF REVIEW motion to dismiss the complaint. The case proceeded to discovery under the direction A district judge may accept, reject, or and Magistrate Judge Lindsay, and modify, in whole or in part, the findings and defendant filed an answer to the complaint recommendations of the Magistrate Judge. on February 18, 2011. On November 18, See DeLuca v. Lord, 858 F. Supp. 1330, 2011, Magistrate Judge Brown was added to 1345 (S.D.N.Y. 1994); Walker v. Hood, 679 the case and, from that point on, handled F. Supp. 372, 374 (S.D.N.Y. 1988). As to discovery. those portions of a report to which no "specific written objection" is made, the

On May 15, 2012, defendant filed a Court may accept the findings contained motion for summary judgment, pursuant to therein, as long as the factual and legal bases Rule 56 of the Federal Rules of Civil supporting the findings are not clearly Procedure. Plaintiff filed a declaration in erroneous. Santana v. United States, 476 F. opposition to defendant's motion on June Supp. 2d 300, 302 (S.D.N.Y. 2007); Greene 15, 2012, and defendant filed a reply in v. WCI Holdings Corp.,956 F. Supp. 509, further support of its motion for summary 513 (S.D.N.Y. 1997). When "a party judgment on June 29, 2012. By Order dated submits a timely objection to a report and October 16, 2012, the Court referred the recommendation, the district judge will motion for summary judgment to Magistrate review the parts of the report and Judge Brown for a Report and recommendation to which the party objected Recommendation. under a de novo standard of review." Jeffries v. Verizon, 10-CV-2686 (JFB)(AKT), 2012

On February 27, 2013, Magistrate Judge WL 4344188, at *1 (E.D.N.Y. Sept. 21, Brown issued an R&R, recommending that 2012); see also 28 U.S.C. § 636(b)(1)(C) defendant's motion for summary judgment ("A judge of the court shall make a de novo be granted in its entirety. By Order dated determination of those portions of the report March 18, 2013, this Court adopted or specified proposed findings or Magistrate Judge Brown's R&R in its recommendations to which objection is entirety, thereby granting defendant's made."); Fed. R. Civ. P. 72(b)(3) ("The motion for summary judgment and directing district judge must determine de novo any the Clerk of Court to enter judgment part of the magistrate judge's disposition accordingly and close the case. that has been properly objected to. The district judge may accept, reject, or modify The Court received plaintiff's objections the recommended disposition; receive to the R&R one day after it issued its Order further evidence; or return the matter to the adopting the R&R. Accordingly, by Order magistrate judge with instructions.").

III. PLAINTIFF'S OBJECTIONS be granted, in its entirety. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3),

Plaintiff objects to the R&R with respect that any appeal from this Order would not be to its recommendation that the Court grant taken in good faith; therefore, in forma defendant's motion for summary judgment pauperis status is denied for purposes of an pursuant to Rule 56 of the Federal Rules of appeal. See Coppedge v. United States, 369 Civil Procedure because (1) plaintiff did not U.S. 438, 444-45 (1962). establish a prima facie case that the defendant discriminated against him based SO ORDERED. on race, and (2) in any event, defendant provided a legitimate, non-pretextual reason for plaintiff's termination and plaintiff failed to set forth any evidence to rebut ______________________ defendant's basis for the termination.

JOSEPH F. BIANCO United States District Judge

Plaintiff claims that the R&R is "arbitrary and capricious." (See Pl.'s Dated: April 17, 2013 Objections at 1.) However, plaintiff does not Central Islip, NY point to any evidence which undermines the factual or legal conclusions reached by Magistrate Judge Brown in his R&R. * * * Instead, plaintiff calls the Court's attention to a host of exhibits that do not serve to The plaintiff proceeds pro se. Defendant is further his position in this case. As represented by Elana Gilaad and Philip K. Magistrate Judge Brown correctly concluded Davidoff of Ford & Harrison LLP, 100 Park after a thorough review of the record, Avenue, Suite 2500, New York, N.Y. plaintiff has set forth no evidence that his 10017. removal from the North Shore LIJ Complex was motivated by his race; rather, the uncontroverted evidence demonstrates that plaintiff was terminated because of the February 2, 2009 parking garage incident. In short, given the uncontroverted facts in the record, no rational jury could find that the termination was motivated by race.

The Court has conducted a de novo the R&R in its entirety, and it adopts the R&R in all respects.

IV. CONCLUSION

Having conducted a de novo review of the R&R, and having considered the parties' additional submissions, the Court again adopts the R&R, recommending that defendant's motion for summary judgment

20130417

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