Mercer v. Petro

Filing 9

MEMORANDUM-DECISION & ORDER: It is ordered that Magistrate Judge David R. Homer's # 5 Report and Recommendation is ACCEPTED and ADOPTED in its entirety, therefore Plaintiff's # 1 Complaint is DISMISSED in its entirety. Signed by Judge Glenn T. Suddaby on 6/28/2011. (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
ARTHUR MERCER,
Plaintiff,
1:11-CV-0157 (GTS/DRH)
v.
THOMAS K. PETRO, Attorney at Law,
Defendant.
_______________________________________________
APPEARANCES:

OF COUNSEL:

ARTHUR MERCER, 001646
Plaintiff, Pro Se
Ulster County Jail
380 Boulevard
Kingston, New York 12401
HON. GLENN T. SUDDABY, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court in this pro se civil rights action filed by Arthur Mercer
(“Plaintiff”) is United States Magistrate Judge David R. Homer’s Report-Recommendation
recommending that Plaintiff’s Complaint be dismissed in its entirety for failure to state a claim
upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e) and 1915A. (Dkt. No. 5.)
For the reasons that follow, the Report-Recommendation is accepted and adopted, and Plaintiff’s
Complaint is dismissed in its entirety.
I.

RELEVANT BACKGROUND
A.

Plaintiff’s Complaint

On February 10, 2011, Plaintiff filed his Complaint. (Dkt. No. 1.) Generally, in his
Complaint, Plaintiff claims that Thomas K. Petro (“Defendant”) violated his rights under

unspecified provisions of the United States Constitution by failing to properly represent him
concerning an indictment against him in Ulster County between December 2010 and February
2011. (Dkt. No. 1, Attach. 6.) More specifically, Plaintiff alleges that Defendant failed to (1)
challenge the legality of the indictment, (2) file pretrial motions, and (3) obtain summonses for
witnesses. (Id.) Plaintiff further alleges that the charges against him should have been dismissed
because “it is well beyond six months for a speedy trial and over 245 day[s] that is chargeable,”
and that Defendant’s failure to file pretrial motions has resulted in his continued wrongful
imprisonment. (Id.) For a more detailed recitation of Plaintiff’s claims, and the factual
allegations that support those claims, the Court refers the reader to the Complaint and Magistrate
Judge Homer’s Report-Recommendation. (Dkt. Nos. 1, 5.)
B.

Magistrate Judge Homer’s Report-Recommendation and Plaintiff’s
Objections to the Report-Recommendation

On March 1, 2011, Magistrate Judge Homer issued a Report-Recommendation
recommending that Plaintiff’s Complaint be dismissed for failure to state a claim upon which
relief can be granted, pursuant to 28 U.S.C. §§ 1915(e) and 1915A. Magistrate Judge Homer
further advised Plaintiff that, to the extent he has attempted to assert a claim of ineffective
assistance of counsel, such a claim, which must be pursued in a petition for habeas corpus relief
under 28 U.S.C. § 2254, is premature because a final judgment has not be entered. (Dkt. No. 5,
generally.)
On April 20, 2011, after being granted an extension of time in which to do so, Plaintiff
timely filed an Objection to the Report-Recommendation. (Dkt. No. 8.) In his Objection,
Plaintiff repeats many of the allegations asserted in his Complaint, and argues that Magistrate
Judge Homer erred in recommending the dismissal of his Complaint because Defendant’s failure

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to properly represent him amounts to a violation of his right to effective assistance of counsel
under the Sixth Amendment. (See generally id.)
II.

STANDARD OF REVIEW
A.

Standard of Review Governing a Report-Recommendation

When specific objections are made to a magistrate judge's report-recommendation, the
Court makes a “de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” See 28 U.S.C. § 636(b)(1)(C).1
When only general objections are made to a magistrate judge's report-recommendation, or where
the objecting party merely reiterates the same arguments made in its original papers submitted to
the magistrate judge, the Court reviews the report-recommendation for clear error or manifest
injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22,
1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999).2

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On de novo review, “[t]he judge may . . . receive further evidence. . . .” 28 U.S.C.
§ 636(b)(1)(C). However, a district court will ordinarily refuse to consider evidentiary material
that could have been, but was not, presented to the Magistrate Judge in the first instance. See,
e.g., Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In objecting to a
magistrate's report before the district court, a party has no right to present further testimony
when it offers no justification for not offering the testimony at the hearing before the
magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v.
Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (district court did not abuse its
discretion in denying plaintiff's request to present additional testimony where plaintiff “offered
no justification for not offering the testimony at the hearing before the magistrate”).
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See also Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F. Supp.
380, 382 (W.D.N.Y. 1992) (explaining that court need not consider objections that merely
constitute a "rehashing" of the same arguments and positions taken in original papers submitted
to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL
3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue,
07-CV-1077, 2010 WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte
v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe,
J.).
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Similarly, when a party makes no objection to a portion of a report-recommendation, the Court
reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826,
1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed. R.
Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducing
the appropriate review, the 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).
B.

Standard of Review Governing a Dismissal Pursuant to 28 U.S.C. §§ 1915(e)
and 1915(A)

Magistrate Judge Homer correctly recited the legal standard governing a dismissal
pursuant to 28 U.S.C. §§ 1915(e) and 1915A for failure to state a claim upon which relief may be
granted. Magistrate Judge Homer also correctly recited the standard governing petitions for
writs of habeas corpus under 28 U.S.C. § 2254(a), and in particular, the standard governing when
such petitions may be filed. (Dkt. No. 5.) As a result, these standards are incorporated by
reference in this Decision and Order.
III.

ANALYSIS
As an initial matter, even when construed with the utmost of liberality, Plaintiff’s

Objections fail to specifically address Magistrate Judge Homer’s recommendations. Instead,
Plaintiff’s Objections simply repeat the allegations that give rise to his claims. As a result, and
for the reasons explained above in Part II.A. of this Decision and Order, the Court need review
the Report-Recommendation for only clear error.
After doing so, the Court can find no error in the Report-Recommendation, clear or
otherwise. Magistrate Judge Homer employed the proper standards, accurately recited the facts,
and reasonably applied the law to those facts. (Id.) As a result, the Court adopts the

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Report-Recommendation in its entirety for the reasons stated therein.
The Court would add only two points. First, Magistrate Judge Homer’s thorough and
correct Report-Recommendation would survive even a de novo review. Second, generally,
before a district court dismisses a pro se action sua sponte, the plaintiff will be allowed to amend
his action. However, an opportunity to amend is not required where the defects in the plaintiff’s
claims are substantive rather than merely formal, such that any amendment would be futile. This
rule applies even to pro se plaintiffs. See, e.g., Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000); Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1-2 (N.D.N.Y. Sept. 22, 1997)
(Pooler, J.). Here, even when the Court construes Plaintiff’s Complaint with the utmost of
special leniency, the Court finds that the referenced defects in that Complaint are substantive, not
merely formal, such that any amendment would be futile.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Homer’s Report-Recommendation (Dkt. No. 5) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED in its entirety.
Dated: June 28, 2011
Syracuse, New York

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