Mercer v. Schneiderman et al
Filing
10
DECISION AND ORDER: ACCEPTING and ADOPTING the # 5 Report-Recommendation in its entirety. Further ORDERED that Plaintiff's # 1 Complaint is DISMISSED with prejudice. Signed by Judge Glenn T. Suddaby on 8/18/2011. {Copy served upon pro se plaintiff via regular mail} (mae)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
ARTHUR MERCER,
Plaintiff,
1:11-CV-0490
(GTS/DRH)
v.
ERIC T. SCHNEIDERMAN, Attorney General for the
State of New York; HOLLEY D. CARNRIGHT, Ulster
County District Attorney; and KEVIN C. HARP, Ulster
County Prosecutor,
Defendants.
_______________________________________________
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
DECISION and ORDER
Currently before the Court in this pro se civil rights action, filed by Arthur Mercer
(“Plaintiff”) against the three above-captioned individuals (“Defendants”), is United States
Magistrate Judge David R. Homer’s Report-Recommendation recommending that Plaintiff’s
Complaint be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e), based on his finding that
the claims asserted in that Complaint fail to state a claim upon which relief can be granted,
pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 5.) For the reasons set forth below, the ReportRecommendation is accepted and adopted, and Plaintiff’s Complaint is dismissed with prejudice.
I.
RELEVANT BACKGROUND
A.
Plaintiff’s Complaint
On April 29, 2011, Plaintiff filed his Complaint. (Dkt. No. 1.) Generally, in his
Complaint, Plaintiff alleges that Defendants violated his constitutional rights in the following
respects: (1) Defendant Carnright allowed Defendant Harp to present an indictment to the Ulster
County Court grand jury despite Plaintiff not having legal representation, in violation of his right
to due process under the Fourteenth Amendment; (2) Defendants Carnright and Harp did not
allow Plaintiff to testify before the grand jury despite receiving notice that Plaintiff intended to
do so, in violation of his right to due process under the Fourteenth Amendment; and (3)
Defendant Schneiderman allowed Defendant Harp to present the criminal case against Plaintiff
to the grand jury despite Plaintiff not having legal representation, in violation of his right to
equal protection under the Fourteenth Amendment. (Dkt. No. 1 at 2.) For a more detailed
recitation of Plaintiff’s allegations, the Court refers the reader to the Complaint in its entirety,
and to Magistrate Judge Homer’s thorough Report-Recommendation, which accurately describes
those allegations. (Dkt. Nos. 1, 5.)
B.
Magistrate Judge Homer’s Report-Recommendation
On May 16, 2011, Magistrate Judge Homer issued a Report-Recommendation
recommending that Plaintiff’s Complaint be dismissed with prejudice pursuant to 28 U.S.C. §
1915(e) for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P.
12(b)(6). (Dkt. No. 5.) Magistrate Judge Homer based his recommendation on the following:
(1) the fact that Plaintiff’s claims for money damages are barred by the rule set forth by the
Supreme Court in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), because Plaintiff failed to
allege facts plausibly suggesting that his criminal conviction “has been reversed on direct appeal,
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expunged by executive order, declared invalid by a state tribunal . . . or called into question by a
federal court's issuance of a writ of habeas corpus . . . ."; (2) the fact that Plaintiff’s claims for
money damages against the New York State Department of Corrections ("DOCS") are barred by
the Eleventh Amendment; and (3) the fact that Defendants Schneiderman and Carnright are
absolutely immune from liability under 42 U.S.C. § 1983 to the extent Plaintiff’s claims are
based on them allegedly allowing Defendant Harp to criminally prosecute him. (Dkt. No. 5.)
C.
Plaintiff’s Objection to the Report-Recommendation
On June 30, 2011, after an extension of time was granted by the Court, Plaintiff filed
his Objection to the Report-Recommendation. (Dkt. No. 8.) In his Objection, Plaintiff “agrees
with this [C]ourt in its decision to dismiss [his] Complaint but respectfully request[s]
[permission] . . . to resubmit [his Complaint] if the need arise[s]” at “a later date.” (Dkt. No. 8,
at 2-3.) Liberally construed, then, Plaintiff’s Objection objects only to the dismissal of his
Complaint with prejudice, requesting leave to file either an Amended Complaint or a new action.
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." 28 U.S.C. § 636(b)(1)(C).1 When
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On de novo review, a district court will ordinarily refuse to consider arguments,
case law and/or 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 discretion in denying plaintiff's request to present additional testimony where he
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only general objections are made to a magistrate judge's report-recommendation (or the objecting
party merely repeats the allegations of his pleading), the Court reviews 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
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 conducting
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. § 1915A(b)(1)
Magistrate Judge Homer correctly recited the legal standard governing a dismissal
pursuant to 28 U.S.C. § 1915A(b)(1). (Dkt. No. 5, Part II.B.) As a result, this standard is
incorporated by reference in this Decision and Order.
III.
ANALYSIS
As stated above in Part I.B. of this Decision and Order, Plaintiff concedes, in his
Objection, that dismissal of his Complaint is proper; rather, he objects only to the dismissal of
his Complaint with prejudice, requesting leave to file either an Amended Complaint or a new
"offered no justification for not offering the testimony at the hearing before the magistrate").
2
See also Vargas v. Keane, 93-CV-7852, 1994 WL 693885, at *1 (S.D.N.Y. Dec.
12, 1994) (Mukasey, J.) ("[Petitioner's] general objection [that a] Report . . . [did not] redress the
constitutional violations [experienced by petitioner] . . . is a general plea that the Report not be
adopted . . . [and] cannot be treated as an objection within the meaning of 28 U.S.C. § 636."),
aff'd, 86 F.3d 1273 (2d Cir.), cert. denied, 519 U.S. 895 (1996).
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action. (Dkt. No. 8, at 2-3.) As a result, the Report-Recommendation need be reviewed for only
clear error, except for that portion of the Report-Recommendation recommending that the
dismissal of Plaintiff’s Complaint be with prejudice, which need be reviewed de novo.
With respect to Magistrate Judge Homer’s recommendation that Plaintiff’s Complaint be
dismissed, the Court can find no error–clear or otherwise–in that recommendation, based on a
careful review of all of the papers in this action. Magistrate Judge Homer employed the proper
standards, accurately recited the facts, and reasonably applied the law to those facts. As a result,
that portion of the Report-Recommendation is accepted and adopted in its entirety, and
Plaintiff’s Complaint is dismissed.
With respect to Magistrate Judge Homer’s recommendation that the dismissal be with
prejudice, the Court finds that that recommendation survives a de novo review. Generally, when
a district court dismisses a pro se claim sua sponte, the plaintiff will be allowed to amend his
action. See Gomez v. USAA Fed. Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999). 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.3 As the Second Circuit has
explained, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is
not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d
129, 131 (2d Cir.1993) (citations omitted), accord, Brown v. Peters, 95-CV-1641, 1997 WL
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See Foman v. Davis, 371 U.S. 178, 182 (1962) (denial not abuse of discretion
where amendment would be futile); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (“The
problem with Cuoco's causes of action is substantive; better pleading will not cure it. Repleading
would thus be futile. Such a futile request to replead should be denied.”); Cortec Indus., Inc. v.
Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to
allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”);
Health–Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) (“[W]here ... there is no merit in
the proposed amendments, leave to amend should be denied”).
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599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) (“[T]he court need not grant leave to amend
where it appears that amendment would prove to be unproductive or futile.”).4 Here, the Court
finds that, even when Plaintiff’s claims are construed with the utmost of special liberality, the
defects in those claims are substantive rather than merely formal, such that any amendment
would be futile. As a result, the remainder of Magistrate Judge Homer’s ReportRecommendation is accepted and adopted, and the dismissal of Plaintiff’s Complaint is with
prejudice.
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 with prejudice.
Dated: August 18, 2011
Syracuse, New York
4
The Court notes that two Second Circuit cases exist reciting the standard as being
that the Court should grant leave to amend “unless the court can rule out any possibility,
however unlikely it might be, that an amended complaint would succeed in stating a claim.”
Gomez v. USAA Federal Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999); Abbas v. Dixon, 480 F.3d
636, 639 (2d Cir. 2007). The problem with these cases is that their “rule out any possibility,
however likely it might be” standard is rooted in the “unless it appears beyond doubt” standard
set forth in Conley v. Gibson, 355 U.S. 41, 45–46 (1957), which was “retire[d]” by the Supreme
Court in Bell Atlantic Corporation v. Twombly, 127 S.Ct. 1955 (2007). See Gomez v. USAA
Federal Sav. Bank, 171 F.3d 794, 796 (relying on Branum v. Clark, 927 F.2d 698, 705 [2d Cir.
1991], which relied on Conley v. Gibson, 355 U.S. 41, 45–46 [1957] ). Thus, this standard does
not appear to be an accurate recitation of the governing law.
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