Barber v. United States of America

Filing 4

MEMORANDUM-DECISION and ORDER: It is ORDERED that Magistrate Judge Treece's # 3 Report-Recommendation is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that this action shall be sua sponte DISMISSED pursuant to 28 U.S.C. § ; 1915(e)(2)(B) unless, within 30 days from the date of this Order, Plaintiff files an Amended Complaint that states a claim upon which relief can be granted, in compliance with this Decision and Order. Signed by Judge Glenn T. Suddaby on 7/14/2011. (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:
TRACY BARBER,
Plaintiff, Pro Se
189 Pearl Street
Corning, New York 14830
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 Tracy Barber
(“Plaintiff”) is United States Magistrate Judge Randolph F. Treece’s Report-Recommendation
recommending that this action be dismissed unless Plaintiff files an Amended Complaint that
states a claim upon which relief can be granted. (Dkt. No. 3.) No objection to the ReportRecommendation has been filed, and the time in which to do so has expired. (See generally
Docket Sheet.) For the reasons set forth below, the Report-Recommendation is accepted and
adopted in its entirety’ and Plaintiff’s Complaint is sua sponte dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B), unless, within thirty (30) days from the date of this Decision and Order, she files
an Amended Complaint that state a claim upon which relief can be granted.

I.

RELEVANT BACKGROUND
A.

Plaintiff’s Complaint

On May 9, 2011, Plaintiff filed her Complaint in this action. (Dkt. No. 1.) Construed
with the utmost of special liberality, Plaintiff Complaint appears to attempt to assert one or more
claims of gender discrimination against the federal government (and perhaps “county and state
government agencies”) arising from (1) the denial of “opportunities and . . . services for housing,
healthcare, grant [sic], loan [sic], equal employment, financial assistance for student [sic],” in
2009 and/or 2010, and (2) the failure of various courts (specifically, the New York State Court of
Claims and the United States Court of Appeals for the Second Circuit) to rectify these denials, in
2011 (Id.) However, as Magistrate Judge Treece states in his Report-Recommendation, “the
Complaint is, at best, disjointed and confusing.” (Dkt. No. 3.) For example, it is unlcear
precisely who is being sued in this action. (See generally Dkt. No. 1.) Indeed, as Magistrate
Judge Treece states, “the body of the Complaint is devoid of any factual allegation against a
specific Defendant by which this Court can assess any wrongdoing.” (Dkt. No. 3.) Nor is there
a clear request for relief in the Complaint. (See generally Dkt. No. 1.) As Magistrate Judge
Treece states, “the documents attached to the Complaint do little to clarify what relief Plaintiff is
seeking and on what basis.” (Dkt. No. 3.)
For a more detailed recitation of Plaintiff’s claims, and the factual allegations in support
of those claims, the Court refers the reader to the Complaint in its entirety. (Dkt. No. 1.)
B.

Magistrate Judge Treece’s Report-Recommendation

On May 20, 2011, Magistrate Judge Treece issued a Report-Recommendation
recommending that (1) 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, and (2) Plaintiff be afforded
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an opportunity to amend her Complaint to cure the above-described pleading deficiencies. (Dkt.
No. 3.) Plaintiff did not submit an objection to the Report-Recommendation and the time in
which to do so has expired. (See generally Docket Sheet.)
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)

Because Plaintiff has filed an application to proceed in forma pauperis, the Court must
address the sufficiency of the allegations that Plaintiff has set forth in her Complaint in light of
28 U.S.C. § 1915(e)(2)(B). This is because Section 1915(e)(2)(B) directs that, when a plaintiff
seeks to proceed in forma pauperis, "(2) . . . the court shall dismiss the case at any time if the
court determines that– . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim
on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief." 28 U.S.C. § 1915(e)(2)(B).
Because Magistrate Judge Treece correctly recited the legal standard governing a
dismissal for failure to state a claim upon which relief may be granted, the Court need not repeat
that legal standard. (Dkt. No. 3.) Rather, this standard is incorporated by reference in this
Decision and Order.
III.

ANALYSIS
As an initial matter, because Plaintiff has not filed an Objection to the Report-

Recommendation, the Court need review the Report-Recommendation for only clear error for the
reasons explained above in Part II.A. of this Decision and Order.

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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, the Court adopts the
Report-Recommendation in its entirety for the reasons stated therein. The Court would add only
that Magistrate Judge Treece’s thorough and correct Report-Recommendation would survive
even a de novo review.
In the event that Plaintiff wishes to file an Amended Complaint, which shall supersede
and replace in its entirety her original Complaint, the Court offers the following guidance. First,
the Amended Complaint must contain a caption that clearly identifies, by name, each individual
that Plaintiff is suing in the present lawsuit, and must bear the case number assigned to this
action. Second, the Amended Complaint must also clearly state the nature of the suit and the
basis for this Court’s jurisdiction. Third, the body of Plaintiff’s Amended Complaint must
contain sequentially numbered paragraphs containing only one act of misconduct per paragraph.
Thus, if Plaintiff claims that her civil and/or constitutional rights were violated by more than one
Defendant, or on more than one occasion, she should include a corresponding number of
paragraphs in her amended complaint for each such allegation, with each paragraph specifying
(i) the alleged act of misconduct, (ii) the date on which such misconduct occurred, (iii) the names
of each and every individual who participated in such misconduct, (iv) where appropriate, the
location where the alleged misconduct occurred, and (v) the nexus between such misconduct and
Plaintiff’s civil and/or constitutional rights. Fourth, Plaintiff’s Amended Complaint must assert
claims against each and every Defendant named in that Amended Complaint; any Defendant not
named in that Amended Complaint shall not be a Defendant in this action. Fifth, no portion of
Plaintiff’s original Complaint shall be incorporated by reference in her Amended Complaint.
Plaintiff shall state in the single Amended Complaint all claims that she wishes this Court to
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consider as a basis for awarding her relief herein. Sixth, and finally, her failure to file such an
Amended Complaint will result in dismissal of this action without further Order of the Court.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Treece’s Report-Recommendation (Dkt. No. 3) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that this action shall be sua sponte DISMISSED pursuant to 28 U.S.C.
§ 1915(e)(2)(B) unless, within THIRTY (30) DAYS from the date of this Decision and Order,
Plaintiff files an Amended Complaint that states a claim upon which relief can be granted, in
compliance with this Decision and Order.
Dated: July 14, 2011
Syracuse, New York

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