McDay v. Eckert

Opinion

2D STATES DISTRIGS UNITED STATES DISTRICT COURT Ss Se WESTERN DISTRICT OF NEW YORK PX APR 3 0 2024 LY ae DARLENE MCDAY, individually and Leng SU PWS as Executrix of the Estate of Dante Taylor, and TEMPLE MCDAY Plaintiffs, 20-CV-233 (JLS)(JJM) v. STEWART ECKERT, Superintendent, Wende Correctional Facility; MARGARET STIRK, Unit Chief, Wende Correctional Facility; KRISTEN MURATORE, Forensic Program Administrator, Wende Correctional Facility; SERGEANT TIMOTHY LEWALSKI; SERGEANT SCOTT LAMBERT; CORRECTION OFFICER McDONALD; CORRECTION OFFICER FREEMAN; CORRECTION OFFICER THOMAS WHITE; CORRECTION OFFICER J. HORBETT; CORRECTION OFFICER D. JANIS; CORRECTION OFFICER MELVIN MALDONADO; CORRECTION OFFICER MARK COLLETT; CORRECTION OFFICER GREIGHTON; CORRECTION OFFICER THEAL; CORRECTION OFFICER BARON; JILL OLIVIERI, R.N.; DIANE DIRIENZO, R.N.; LISA PRISHEL, R.N.; DEBRA STUBEUSZ, M.D.; ANJUM HAQUE, M.D.; BERTRAM BARALL, M.D.; KELLY KONESKY, LCSW-R; DANA MANCINI, SW2; JOHN and JANE DOES 1-10; and JOHN and JANE SMITH 1-14, Defendants.

DECISION AND ORDER The claims in this action relate to the death of, and alleged assault upon, Dante Taylor—an inmate who was confined at Wende Correctional Facility. The case has been referred to United States Magistrate Judge Jeremiah J. McCarthy for all proceedings under 28 U.S.C. §§ 636(b)(1)(A)-(C). Dkt. 23. On February 28, 2024, Plaintiff Darlene McDay moved to amend the Complaint. Dkt. 281. Various defendants opposed the motion, see Dkt. 288-292, and Plaintiff replied. Dkt. 296. On April 12, 2024, Judge McCarthy issued a Report and Recommendation (“R&R”), recommending that the [281] motion be denied. Dkt. 299. No party objected to the R&R, and the time to do so has expired. A district court may accept, reject, or modify the findings or recommendations of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(8). For a “dispositive matter, the district court reviews de novo the parts of the R&R to which the parties object[,] and reviews for clear error the parts of the R&R to which the parties do not object.” Allen v. United Parcel Serv., Inc., 988 F. Supp. 2d 2938, 297 (E.D.N.Y. 2013) (citing Fed. R. Civ. P. 72(b)(3)). For a “non-dispositive matter, the district court reviews the R&R for clear error.” Jd. (citing Fed. R. Civ. P. 72(a)). Authority “is divided about whether a motion for leave to amend a complaint is a dispositive or non-dispositive matter.” Id. (citing Jean-—Laurent v. Wilkerson, 461 Fed. Appx. 18, 25 (2d Cir. 2012)). But where, as here, “no party has objected to [the] R&R,” this “determination is not necessary,” because “review is based on the same ‘clear error’ standard” in either instance. Von Rohr Equip. Corp. v. Tanner

Bolt & Nut Corp., No. 17CV2913NGGRER, 2017 WL 5067406, at *1 (E.D.N.Y. June 12, 2017). This Court has carefully reviewed Judge McCarthy's R&R and the relevant record. Based on that review, the Court concludes that the R&R is not clearly erroneous. As such, the Court accepts Judge McCarthy’s recommendation. For the above reasons, as well as those in the R&R, the [281] motion to amend is DENIED. The case is referred back to Judge McCarthy consistent with the June 29, 2020 referral order. See Dkt. 28.

SO ORDERED.

Dated: April 30, 2024 Buffalo, New York

\ JOHN. SINATRASIR. UNITED STATES DISTRICT JUDGE