United States District Court, S.D. New York
ORDER ADOPTING REPORT & RECOMMENDATION
VALERIE CAPRONI UNITED STATES DISTRICT JUDGE.
Jamie Portillo, proceeding pro se, alleges that
excessive force was used against him while he was
incarcerated at the Anna M. Kross facility on Rikers Island
in October 2015. Am. Compl. (Dkt. 17) at 4. Plaintiff alleges
that he suffered a “minor stroke” on October 13,
2015. Am. Compl. at 4. The Defendants, corrections officers
at the Kross facility, responded to Plaintiff and escorted
him to the Kross medical clinic and then to the East Elmhurst
Hospital. Am. Compl. at 4. Plaintiff alleges that defendant
Webb twice forced him to stand and attempt to walk, causing
him to fall and injure himself. Am. Compl. at 4. Seeking
redress for injuries sustained in his falls, Plaintiff
alleges claims for excessive force against Webb and failure
to intervene against defendants Aldir and Gasanov.
Defendants moved to dismiss on the grounds that
Portillo's amended complaint does not plausibly allege
that excessive force was used by Webb or that the other
defendants had a duty to intervene and failed to do so. Dkts.
23, 24. The Court referred this case to Magistrate Judge
Gorenstein for general pretrial and for preparation of a
report and recommendation on any dispositive motions. Dkt.
10; see also Dkt. 27 (amended order of referral).
The Defendants filed their motion to dismiss on March 3,
2017. Dkts. 23, 24. Portillo opposed the motion on May 11,
2017. Dkt. 29. Defendants replied on June 1, 2017. Dkt. 32.
October 12, 2017, Magistrate Judge Gorenstein issued a report
and recommendation (the “R&R”). Dkt. 34.
Judge Gorenstein concluded that the Amended Complaint did not
sufficiently allege facts from which the Court could infer
that it was objectively unreasonable for defendant Webb to
force Portillo to stand and walk. R&R at 10-11. Judge
Gorenstein also found that the Amended Complaint did not
allege that defendants Aldir and Gasanov had a realistic
opportunity to intervene and prevent excessive force from
being used. R&R at 12. Judge Gorenstein recommended that
the Court grant Portillo leave to amend. R&R at 12-13. In
lieu of filing objections to the R&R, Plaintiff filed a
second amended complaint. Dkt. 37.
reviewing a report and recommendation, a district court
“may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b) (1)(C). When no
objections are made to a magistrate judge's report, a
district court may adopt the report so long as “there
is no clear error on the face of the record.”
Phillips v. Reed Grp., Ltd., 955 F.Supp.2d 201, 211
(S.D.N.Y. 2013) (citing Nelson v. Smith, 618 F.Supp.
1186, 1189 (S.D.N.Y. 1985)). Failure to file timely
objections to the magistrate judge's report constitutes a
waiver of those objections in the district court and on later
appeal to the United States Court of Appeals. See Small
v. Sec'y of Health & Human Servs., 892 F.2d 15,
16 (2d Cir. 1989) (per curiam); see also Thomas v.
Arn, 474 U.S. 140, 149-50 (1985) (holding that Section
636 does not require review of a magistrate's findings if
no party objects).
no objections to the R&R were filed, the Court reviews
for “clear error.” Phillips, 955
F.Supp.2d at 211. Upon careful review, the Court finds no
clear error in Magistrate Judge Gorenstein's
well-reasoned decision. Accordingly, the Court adopts the
R&R in full.
motion to dismiss is GRANTED and Plaintiff is given leave to
file a second amended complaint. As noted above, Plaintiff
has already filed a second amended complaint. The Court will
issue a new referral to Magistrate Judge Gorenstein relative
to Plaintiff's second amended complaint.
Clerk of Court is respectfully requested to close the open
motion at docket entry 23. The Clerk of Court is further
requested to mail a copy of this Order and the R&R to
Plaintiff and to note mailing on the docket.
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
purposes of an appeal. Cf. Coppedge v. United
States, 369 U.S. 438, 444-45 (1962) (holding that
appellant demonstrates good faith when seeking review of a