Barber v. United States of America

Filing 11

DECISION AND ORDER: ADOPTING the # 8 Report and Recommendation in its entirety and DISMISSING plaintiff's # 5 Amended Complaint. The Court certifies, for purposes of 28 U.S.C. § 1915(a)(3), that any appeal taken from this Decision and Order would not be taken in good faith. Signed by Judge Glenn T. Suddaby on 10/24/2011. {Copy served upon pro se plaintiff via regular and certified mail} (mae)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________
TRACY BARBER,
Plaintiff,
1:11-CV-0526
(GTS/RFT)

v.
UNITED STATES of AMERICA,
Defendant.
_______________________________________________
APPEARANCES:

OF COUNSEL:

TRACY BARBER
Plaintiff, Pro Se
189 Pearl Street
Corning, New York 14830
HON. GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by Tracy Barber
(“Plaintiff”) against the United States of America (“Defendant”), are the following: (1)
Plaintiff’s Amended Complaint (Dkt. No. 5); and (3) United States Magistrate Judge Randolph
F. Treece’s Report-Recommendation recommending that Plaintiff’s Amended Complaint be
dismissed in its entirety (Dkt. No. 8). For the reasons set forth below, the ReportRecommendation is accepted and adopted in its entirety, and Plaintiff’s Amended Complaint is
dismissed in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
I.

RELEVANT BACKGROUND
Plaintiff filed his Complaint on May 9, 2011. (Dkt. No. 1.) On July 15, 2011, this Court

issued a Decision and Order that sua sponte dismissed the Complaint, pursuant to 28 U.S.C. §
1915(e)(2)(B), unless, within 30 days from the date of that Order, Plaintiff filed an Amended

Complaint that states a claim upon which relief can be granted. (Dkt. No. 4.) In that Decision
and Order, the Court provided Plaintiff with specific guidance on filing an Amended Complaint.
(Id.)
On July 25, 2011, Plaintiff submitted an Amended Complaint. (Dkt. No. 5.) On August
10, 2011, Magistrate Judge Treece issued a Report-Recommendation recommending that
Plaintiff’s Amended Complaint be dismissed, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for
failure to state a claim upon which relief could be granted. (Dkt. No. 8.) In support of his
recommendation, Magistrate Judge Treece found, among other things, as follows: (1) Plaintiff
failed to allege any facts in the body of his Amended Complaint regarding Defendant such that it
would be possible for the Court to deduce a basis for jurisdiction and liability over this
Defendant; and (2) Plaintiff’s vague allegations do not plausibly suggest what, if any, is the
precise source of the Court’s jurisdiction over this action, who the individual offenders are, what
actions they committed, what rights were violated, and what, if any, relief is being sought. (See
generally Dkt. No. 8.)
On August 15, 2011, Plaintiff filed an Objection to the Report-Recommendation. (Dkt.
No. 9.) In his one-paragraph Objection, Plaintiff does not address any of the grounds for
dismissal outlined in Magistrate Judge Treece’s Report-Recommendation. (Id.) Rather, Plaintiff
appears to argue that the clerk of the Court erred in not appointing him counsel after his
Complaint was filed, an error which the Court of Appeals must now correct. (Id.)

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II.

STANDARD OF REVIEW
A.

Standard of Review Governing a Report-Recommendation

When a specific objection is made to a portion of a magistrate judge's reportrecommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection
must, with particularity, “identify [1] the portions of the proposed findings, recommendations,
or report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R.
72.1(c).1 When performing such a de novo review, “[t]he judge may . . . receive further
evidence. . . .” 28 U.S.C. § 636(b)(1). 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.2

1

See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(“Although Mario filed objections to the magistrate's report and recommendation, the statement
with respect to his Title VII claim was not specific enough to preserve this claim for review. The
only reference made to the Title VII claim was one sentence on the last page of his objections,
where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set
forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’
This bare statement, devoid of any reference to specific findings or recommendations to which
he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title
VII claim.”).
2

See 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”); cf. U. S. v.
Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to require the
district court to conduct a second hearing whenever either party objected to the magistrate's
credibility findings would largely frustrate the plain objective of Congress to alleviate the
increasing congestion of litigation in the district courts.”); Fed. R. Civ. P. 72(b), Advisory
Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a secondary
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When only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition.3 Similarly, when an objection merely reiterates the same arguments made
by the objecting party in its original papers submitted to the magistrate judge, the Court subjects
that portion of the report-recommendation challenged by those arguments to only a clear error
review.4 Finally, when no objection is made to a portion of a report-recommendation, the Court
subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error”
review, “the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” Id.5
After conducing the appropriate review, the Court may “accept, reject, or modify, in
evidentiary hearing is required.”).
3

See also 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).
4

See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers
or arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or
Local Civil Rule 72.3(a)(3).”); 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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See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]
report to which no specific objection is made, so long as those sections are not facially
erroneous.”) (internal quotation marks and citations omitted).
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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)(2)(B)(ii)

In its Decision and Order of July 15, 2011, the Court previously recited the legal standard
governing a dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). (Dkt. No. 4.) As a result, this
standard is 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 Treece’s recommendations. As a result,
and for the reasons explained in Part II.A of this Decision and Order, the Court need review the
Report-Recommendation only for clear error.
After doing so, the Court can find no error in the Report-Recommendation, clear or
otherwise. Magistrate Judge Treece employed the proper standards, accurately recited the facts,
and reasonably applied the law to those facts. (Id.) As a result, Magistrate Judge Treece’s
Report-Recommendation is accepted and adopted in its entirety for the reasons stated therein.
The Court would add only two points. First, the Report-Recommendation would survive
even a de novo review. Second, to the extent Plaintiff’s Objections may be liberally construed as
constituting a motion for appointment of counsel, that motion is denied for three alternative
reasons. First, the motion fails to comply with the Local Rules of this Court. Second, having
dismissed the Amended Complaint, it would be futile to appoint counsel. Third, because
Plaintiff has failed to allege any facts that provide the Court with even a basic understanding of
the relief that he is requesting, the person or persons against whom that relief is sought, and/or

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why this Court has jurisdiction to consider the action, the Court cannot determine whether
appointment of counsel is warranted.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Treece’s Report-Recommendation (Dkt. No. 8) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff’s Amended Complaint (Dkt. No. 5) is DISMISSED in its
entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
The Court certifies, for purposes of 28 U.S.C. § 1915(a)(3), that any appeal taken from
this Decision and Order would not be taken in good faith.
Dated: October 24, 2011
Syracuse, New York

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