Montanez v. Luna et al

Filing 6

DECISION AND ORDER adopting Magistrate Judge Treece's 4 Report and Recommendations and dimissing Plaintiff's 1 complaint unless Plaintiff files an Amended Complaint w/in 30 days from the date of this Decision and Order. Signed by Judge Glenn T. Suddaby on 5/20/2014. (amt) [Pltf served via reg. mail]

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
ISAAC MONTANEZ,
Plaintiff,
1:13-CV-1262
(GTS/RFT)

v.
CHRISTIAN LUNA, Kitchen Manager;
SHAWN REED, GM; DAMON NOBLE,
Manager; and CLINT MALEK,
Defendants.
________________________________________
APPEARANCES:
ISAAC MONTANEZ
Plaintiff, Pro Se
60 Bradford Street
Albany, New York 12206
GLENN T. SUDDABY, United States District Judge

DECISION and ORDER
Currently before the Court, in this pro se employment civil rights action filed by Isaac
Montanez (“Plaintiff”) against the four above-captioned individuals (“Defendants”), is United
States Magistrate Randolph F. Treece’s Report-Recommendation recommending Plaintiff’s
Complaint be dismissed unless he corrects the pleading defects in the Complaint. (Dkt. No. 4.)
Plaintiff has not filed an Objection to the Report-Recommendation and the deadline in which to
do so has expired. (See generally Docket Sheet.)
After carefully considering the matter, the Court can find no clear error in Magistrate
Judge Treece’s Report-Recommendation. (Dkt. No. 4.)1 Magistrate Judge Treece employed the

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When no objection is made to a report-recommendation, the Court subjects that
report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee

proper standards, accurately recited the facts, and reasonably applied the law to those facts. (Id.)
As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons
stated therein.
The Court would add only one brief point. In addition to the pleading defects identified
by Magistrate Judge Treece, the Court bases its decision on the following pleading defects: (1)
the failure to allege facts plausibly suggesting that he experienced any adverse employment
action because of his race and/or national origin; and (2) the failure to allege facts plausibly
suggesting that any Defendant treated him differently than similarly situated individuals. As a
result, his Complaint must be, and shall be, dismissed unless corrected.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Treece’s Report-Recommendation (Dkt. No. 4) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) shall be sua sponte DISMISSED
pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) unless, within THIRTY (30)
DAYS of the date of this Decision and Order, Plaintiff files an Amended Complaint that cures
the pleading defects identified in the Report-Recommendation and this Decision and Order.
Dated: May 20, 2014
Syracuse, New York

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.: 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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