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, )

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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 1 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 2 The Clerk is directed to append the R&R to this decision, and familiarity therewith is presumed. 2 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 3 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 3 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.) 4 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 5

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