Varela v. The County of Rensselear et al

Filing 81

MEMORANDUM-DECISION and ORDER - That the Clerk is directed to amend the caption to correct the spelling of "Rensselaer". That Magistrate Judge David R. Homer's March 8, 2012 67 Report-Recommendation and Order is ADOPTED in its entirety. That Varela's 50 Motion for Preliminary Injunction/Temporary Restraining Order is DENIED. Signed by Chief Judge Gary L. Sharpe on 4/17/2012. (Attachments: # 1 Judge Homer's Report-Recommendation) (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________
RAFAEL VARELA,
Plaintiff,

1:10-cv-1390
(GLS/DRH)

v.
THE COUNTY OF RENSSELEAR1 et al.,
Defendants.
_________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Rafael Varela
Pro Se
450 Madison Street
Troy, NY 12180
FOR THE DEFENDANTS
Rensselaer County,
Bailey Kelleher & Johnson, P.C.
& John W. Bailey
Bailey, Kelleher Law Firm
Pine West Plaza 5
Suite 507
Washington Avenue Extension
Albany, NY 12205
City of Troy, Troy P.D. & Epstein
City of Troy, Corporation Counsel
Department of Law
1776 6th Avenue
Troy, NY 12180
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JOHN W. BAILEY, ESQ.
WILLIAM C. FIRTH, ESQ.

IAN H. SILVERMAN, ESQ.
CHARLES A. SARRIS, ESQ.
JAMIE B. THOMAS, ESQ.

The Clerk is directed to amend the caption to correct the spelling of “Rensselaer.”

Office of Joshua A. Sabo
287 North Greenbush Road
Troy, NY 12180

JOSHUA A. SABO, ESQ.

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Rafael Varela commenced this action in New York
State Supreme Court alleging his constitutional rights were violated by
defendants. (See generally Dkt. No. 1, Attach. 1.) Following defendants
removal to this court, (see Dkt. No. 1 at 1-4), Varela filed, among other
things, a motion for a preliminary injunction (PI) and temporary restraining
order (TRO). (See Dkt. No. 50.) In a Report-Recommendation and Order
(R&R) filed March 8, 2012, Magistrate Judge David R. Homer
recommended that Varela’s motion be denied.2 (See generally R&R, Dkt.
No. 67.) Pending are Varela’s objections to the R&R. (See Dkt. No. 74.)
For the reasons that follow, the R&R is adopted in its entirety.
II. Standard of Review

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The Clerk is directed to append the R&R to this decision, and familiarity therewith is
presumed.

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Before entering final judgment, this court routinely reviews all report
and recommendation orders in cases it has referred to a magistrate judge.
If a party has objected to specific elements of the magistrate judge’s
findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No.
04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those
cases where no party has filed an objection, or only a vague or general
objection has been filed, this court reviews the findings and
recommendations of the magistrate judge for clear error. See id.
III. Discussion
Varela’s first objection to the R&R addresses Judge Homer’s
purported misunderstanding of the “Constitutional right to freedom and
liberty of Mr. Varela (to drive where ever he wants).” (Dkt. No. 74 ¶ 2.)
Based on this right—which essentially amounts to the right to drive without
restriction—Varela avers that Judge Homer erred when he recommended
that the PI/TRO be denied. (See id. ¶¶ 1-3.) Simply put, the court
disagrees. Varela’s claim is wholly unsubstantiated, and as such, is at
best, a general or vague objection. (See id. ¶¶ 2-8.) Likewise, Varela’s
second objection, (see id. ¶¶ 10-15), to Judge Homer’s footnote is of no
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moment as the notation was dicta in the background section of the R&R.3
(See R&R at 3 n.3.) More importantly though, Varela’s objection is moot
as Judge Homer permitted him to amend his complaint, in which he can
articulate the substance of his objection. (See R&R at 11, 14.) Because
Varela fails to raise any specific errors in the R&R, the court concludes that
a de novo review is unnecessary. Having found no clear error in the R&R,
the court accepts and adopts Judge Homer’s R&R in its entirety.
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the Clerk is directed to amend the caption to correct
the spelling of “Rensselaer”; and it is further
ORDERED that Magistrate Judge David R. Homer’s March 8, 2012
Report-Recommendation and Order (Dkt. No. 67) is ADOPTED in its
entirety; and it is further
ORDERED that Varela’s motion for PI/TRO (Dkt. No. 50) is DENIED;
and it is further

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Varela filed a Revised Objection to the R&R on March 27, 2012. (See Dkt. No. 78.)
In addition to being untimely, (see R&R at 14), the Revised Objection is irrelevant as the
inclusion of the Family Court order—the only substantive difference between the original and
revised objection—addresses Judge Homer’s footnote, not the propriety of a PI/TRO. (See
Dkt. No. 78 at 3-7.)

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ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
April 17, 2012
Albany, New York

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