Hopeton K. Francis v. City of New York, et al.

USDC SDNY DOCUMENT UNITED STATES DISTRICT COURT ELECTRONICALLY FILED SOUTHERN DISTRICT OF NEW YORK DOC #: HOPETON K. FRANCIS, DATE FILED:__ 12/5/2025 Plaintiff, -against- 24-CV-02530 (MMG) CITY OF NEW YORK, et al., = Defendants.

MARGARET M. GARNETT, United States District Judge: Defendants’ motion to dismiss the complaint, see Dkt. No. 19, was referred to Magistrate Judge Robyn J. Tarnofsky for a Report and Recommendation. See Dkt. No. 47. In the Report and Recommendation (“R&R”) filed on October 10, 2025, Judge Tarnofsky recommended that the motion to dismiss be granted, but with leave for Plaintiff to file a further amended complaint if he can address the issues in the current complaint identified in the R&R. See Dkt. No. 62.

In 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). A district court “must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). To accept those portions of the report to which no timely objection has been made, however, a district court need only satisfy itself that there is no clear error on the face of the record. See, e.g., Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003).

In the present case, the R&R advised the parties that they had fourteen days from service of the R&R to file any objections, and warned that failure to timely file such objections would result in waiver of any right to object. See Dkt. No. 62. In addition, the R&R expressly called the parties’ attention to Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). Judge Tarnofsky also extended Plaintiff's time to file objections to November 18, 2025, in light of concerns that he was not properly served with the R&R. See Dkt. Nos. 63, 65, 66. Nevertheless, as of the date of this Order, no objections have been filed and no request for an extension of time to object has been made. Accordingly, Plaintiff has waived the right to object to the R&R or to obtain appellate review. See Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992): see also Caidor v. Onondaga County, 517 F.3d 601 (2d Cir. 2008).+ Despite the waiver, the Court has reviewed the motion papers and the R&R, unguided by objections, and finds the R&R to be well reasoned, grounded in fact and law, and appropriately solicitous of Plaintiffs pro se status. Accordingly, the R&R is ADOPTED in its entirety. ' Defendants have also failed to object, but they have been in regular communication with the Court.

Per the R&R, Defendants’ motion to dismiss is GRANTED, but Plaintiff shall be afforded an opportunity to submit a second amended complaint if he can address the problems with his Amended Complaint identified in the R&R. Plaintiff is reminded that a second amended complaint would replace and not supplement all prior complaints, so he should include any and all allegations that he wants the Court to consider in his second amended complaint.

Plaintiff is also reminded that there is a Legal Assistance Clinic available to assist self- represented parties in civil cases. The Clinic may be able to provide a pro se party with advice in connection with their case. The Clinic is run by a private organization called the City Bar Justice Center. If Plaintiff would like legal assistance, he should complete the City Bar Justice Center’s intake form (available at https://www.nysd.uscourts.gov/attomey/legal-assistance) to make an appointment. If Plaintiff has any difficulty with the form, the Clinic can also be contacted by phone at 212-382-4794 or by email at [email protected]. Appointments are available remotely Monday through Friday from 10:00 a.m. to 4:00 p.m.

The Court defers to Judge Tarnofsky to set a deadline for Plaintiff to file a second amended complaint that addresses the issues identified in the R&R. Plaintiff can address any scheduling issues directly with Judge Tarnofsky during the upcoming telephonic conference before her scheduled for December 17, 2025 at 11:00 a.m. See Dkt. No. 67.

The Clerk of Court is respectfully directed to terminate Dkt. No. 19 and to mail a copy of this Order to Plaintiff at the most recent address from which the Court did not receive returned mail. See Dkt. Nos. 65, 67.

Dated: December 5, 2025 New York, New York SO ORDERED.

United Statés District Judge