McDay et al v. Eckert et al

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Case 1:20-cv-00233-JLS-JJM Document 302 Filed 04/30/24 Page 1of3

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DARLENE MCDAY, individually and
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 OLIVIER],
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.

Case 1:20-cv-00233-JLS-JJM Document 302 Filed 04/30/24 Page 2of3

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. §§ 686(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). Fora
“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 298, 297
(E.D.N.Y. 2018) (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

Case 1:20-cv-00233-JLS-JJM Document 302 Filed 04/30/24 Page 3 of 3

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. 23.

SO ORDERED.

Dated: April 30, 2024
Buffalo, New York

JOHN. SINATRASUR.
UNITED STATES DISTRICT JUDGE