“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.”
How later courts described this case
- “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.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JENNNIFER MCPHERSON,
Plaintiffs, MEMORANDUM &
ORDER
CV 19-7139 (GRB)(LB)
-against- FILED
CLERK
LOUIS DEJOY,
POSTERMASTER GENERAL, et al., 11:19 am, Sep 20, 2021
U.S. DISTRICT COURT
Defendants. EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
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GARY R. BROWN, United States District Judge:
Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge Lois
Bloom (incorporated herein and familiarity assumed) concerning defendants’ motion to dismiss.
Docket Entry (“DE”) 18. The Government has objected, while plaintiff, acting pro se, has not
responded thereto or otherwise objected. DE 20. The R&R, which recommends granting in part
and denying in part the motion, is adopted in its entirety.
In reviewing an R&R, the 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). Where
a party makes specific and timely objections to a magistrate judge’s findings or recommendations
as to dispositive motions, the district court must apply a de novo standard of review to the portions
of the R&R to which the objection is made. Fed. R. Civ. P. 72(b); see also LLC v. Doe 3, 604 F.3d
110, 116 (2d Cir. 2010); 28 U.S.C. § 636(b)(1). However, “general or conclusory objections,
or objections which merely recite the same arguments presented to the magistrate judge, are
reviewed for clear error.” Caldarola v. Town of Smithtown, No. 09-CV-272 (SJF) (AKT), 2011
WL 1336574, at *1 (E.D.N.Y. Apr. 4, 2011) (citations omitted). In the absence of objections, the
Court may adopt an R&R 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.”); 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).
Discussion
The net effect of the R&R is to dismiss most of plaintiff’s claims, leaving only a small
window of actionable conduct – essentially, certain events that occurred in July and August 2018
remain subject to suit. Defendants’ objection focuses exclusively on Judge Bloom’s determination
that, while it remains undisputed that plaintiff did not timely file an EEO claim, equitable tolling
allows the matter to proceed at this stage.
Defendants forcefully argue that Judge Bloom incorrectly applied the presumptions
associated with a Rule 12 motion in reaching the preliminary conclusion that equitable tolling
applies at this juncture. See, e.g., DE 20 at 19 (“[A]pplying the standard generally applicable to
determining a Rule 12(b)(6) motion, which looks soley [sic] at the sufficiency of the facts alleged
in the complaint vis-à-vis the substantive legal claims alleged, to the determination of whether
equitable tolling is justified would effectively eviscerate the doctrine of equitable tolling.”).
Notwithstanding the superficial appeal of this argument, the approach taken by the Magistrate
Judge fully comports with the direction of the Second Circuit:
Despite these deadlines, this Court has recognized that mental illness can be a basis
for tolling the limitations period. See Boos, 201 F.3d at 184. Stella claims that his
mental illness prevented him from timely notifying an EEO counselor, specifically
that he had been “depressed” and “in a trance” for the last twelve years. Because
the District Court dismissed this case pursuant to Rule 12(c), it should have
accepted all the allegations in the complaint as true and drawn all inferences in
Stella’s favor, including the allegation that Stella was unable to comply with
subsequent time limits because of his mental illness. . . . [B]ased on the record
before this Court, the District Court, at this 12(c) stage, abused its discretion.
Stella v. Potter, 297 F. App’x 43, 45-46 (2d Cir. 2008).
Defendants correctly point out that – particularly on the present motion – plaintiff has made
a limited showing to support the application of equitable tolling. However, when considered in
conjunction with the allegations of the complaint, plaintiff has asserted that she had some
extraordinary medical setbacks during the subject period, which were complicated by psychiatric
conditions. See generally DE 1 and 17-9. “When, as here, the facts are disputed, the best practice
is to analyze a question of mental incapacity in the context of summary judgment.” Mandarino v.
Mandarino, 180 F. App’x 258, 261 (2d Cir. 2006). Indeed, in vacating a dismissal based on statute
of limitations grounds, the Mandarino decision noted:
Plaintiff alleged that he suffered from a mental disability that deprived him of his
“ability to perceive events,” Compl. ¶ 13, and that fact must be presumed to be true
on a motion to dismiss, see Lentell v. Merrill Lynch & Co., 396 F.3d 161, 165 (2d
Cir. 2005), even if the lawsuits of which the Court took judicial notice suggested
that plaintiff’s claims would be unlikely to survive summary judgment. Plaintiff
was entitled to an opportunity to adduce evidence supporting his equitable tolling
claim—specifically, evidence demonstrating how he could have been mentally
incapable of timely pursuing this action at the same time that he was able to pursue
other lawsuits. We, of course, express no view as to the likelihood of plaintiff
making a satisfactory showing on this point. We note, however, that the District
Court would act well within its discretion on remand if it required plaintiff to make
this evidentiary showing before proceeding further with the case. We further
emphasize that to secure the benefits of equitable tolling, plaintiff must present
evidence that supports more than a “conclusory and vague” claim of mental
incapacity. Boos, 201 F.3d at 185. Rather, the evidence must provide a
“particularized description of how [his] condition adversely affected [his] capacity
to function generally or in relationship to the pursuit of [his] rights.” Boos, 201 F.3d
at 185; see also Brown v. Parkchester S. Condos., 287 F.3d 58, 60 (2d Cir.2002).
Anything less will warrant summary judgment in favor of the defendants.
While Mandarino and Stella are both unpublished decisions, the guidance seems clear. Judge
Bloom’s decision hits the mark.
Conclusion
The R&R is adopted in its entirety. The matter is referred to Judge Bloom for the
supervision of discovery. Considering the issues raised, however, that discovery process should
prioritize the issues bearing upon equitable tolling, in order to prepare the matter for a summary
judgment motion or an evidentiary hearing on the question.
The Court certifies pursuant to 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 purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
SO ORDERED.
Dated: Central Islip, New York
September 20, 2021
/s/ Gary R. Brown
GARY R. BROWN
United States District Judge