Pickering-George v. Office of the Attorney General, Mario Cuomo et al

Filing 5

ORDER adopting Report and Recommendations re 3 Report and Recommendations. ORDERED that Plaintiff's application to proceed in forma pauperis is GRANTED; ORDERED that plaintiff may file an amended complaint within THIRTY (30) DAYS of the date o f this Order in compliance with the Federal Rules of Civil Procedure and the Local Rules for the United States District Court for the Northern District of New York; and the Court further ORDERS that, if plaintiff fails to file an amended complaint wi thin THIRTY (30) DAYS of the date of this Order, the Clerk of the Court shall enter judgment dismissing this action without further order of this Court; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order and Magistrate Judge Treece's July 27, 2011 Report-Recommendation and Order on all parties in compliance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 8/19/11. (ban)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________________ JOHN PICKERING-GEORGE, (adopted) JOHN R. DALEY, JR., Plaintiff, vs. 1:11-CV-741 (MAD/RFT) OFFICE OF THE ATTORNEY GENERAL, MARIO CUOMO; ATTORNEY GENERAL OF THE UNITED STATES, US DEPARTMENT OF JUSTICE (DOJ); US DEPARTMENT OF JUSTICE, ANGELA L. BYERS; EXECUTIVE OFFICE OF US ATTORNEYS, DIRECTOR K.E. MELSON; US ATTORNEY OFFICE, NORTHERN DISTRICT OF NEW YORK; US MARSHAL'S SERVICE, Northern District of New York; SOLICITOR GENERAL OF THE UNITED STATES; OFFICE OF THE GENERAL INSPECTOR/INVESTIGATORS; and OFFICE OF INSPECTOR GENERAL, Defendants. ____________________________________________ APPEARANCES: OF COUNSEL: JOHN PICKERING-GEORGE 100 West 174th Street Apt. 6-D Bronx, New York 10453 Plaintiff pro se Mae A. D'Agostino, U.S. District Judge: ORDER Plaintiff pro se brings this action pursuant to the Freedom of Information Act ("FOIA"), codified at 5 U.S.C. § 552 et seq. See Dkt. No. 1. In addition to his complaint, plaintiff also filed a motion for leave to proceed in forma pauperis. See Dkt. No. 2. In his complaint, plaintiff requests various documents, allegedly in defendants' possession. See Dkt. No. 1 at 7-8. Plaintiff claims that his rights were violated under FOIA when defendants failed to respond to his requests for documents. See id. at 7-10. Plaintiff, however, fails to provide specific facts regarding his requests and it is not clear exactly what documents plaintiff seeks. See id. In a Report-Recommendation and Order dated July 27, 2011, Magistrate Judge Treece recommended that the Court grant plaintiff's application to proceed in forma pauperis and dismiss plaintiff's complaint for failure to state a claim, or, in the alternative, in light of plaintiff's pro se status, provide plaintiff an opportunity to amend his complaint "to expand upon the facts that would support his claim for entitlement to relief[.]" See Dkt. No. 3 at 5. Plaintiff failed to object to Magistrate Judge Treece's July 27, 2011 Report-Recommendation and Order. When a party files specific objections to a magistrate judge's report-recommendation, the district 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). When a party fails to make specific objections, however, the court reviews the magistrate judge's report for clear error. See Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008); see also Gamble v. Barnhart, No. 02CV1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004) (citations omitted). After 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). Having reviewed Magistrate Judge Treece's Report-Recommendation and Order and the applicable law, the Court concludes that Magistrate Judge Treece correctly found that plaintiff's complaint fails to state a claim. Plaintiff's complaint contains almost no factual support for his claims and fails to identify the documents he seeks. However, in light of plaintiff's pro se status, 2 plaintiff will be provided an opportunity to amend his complaint to provide additional factual information in support of his claims. Accordingly, the Court hereby ORDERS that Magistrate Judge Treece's July 27, 2011 Report-Recommendation and Order is ADOPTED for the reasons stated therein; and the Court further ORDERS that plaintiff's application to proceed in forma pauperis is GRANTED; and the Court further ORDERS that plaintiff may file an amended complaint within THIRTY (30) DAYS of the date of this Order in compliance with the Federal Rules of Civil Procedure and the Local Rules for the United States District Court for the Northern District of New York; and the Court further ORDERS that, if plaintiff fails to file an amended complaint within THIRTY (30) DAYS of the date of this Order, the Clerk of the Court shall enter judgment dismissing this action without further order of this Court; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order and Magistrate Judge Treece's July 27, 2011 Report-Recommendation and Order on all parties in compliance with the Local Rules. IT IS SO ORDERED. Dated: August 19, 2011 Albany, New York 3

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