Barber v. State of New York

Filing 6

DECISION & ORDER: ADOPTING the # 4 Report and Recommendations in its entirety and therefore the # 1 Complaint filed by Tracy Barber is DISMISSED with prejudice. Signed by Senior Judge Thomas J. McAvoy on 9/3/2014. (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
TRACY BARBER,
Plaintiff,
v.

1:14-CV-970
(TJM/CFH)

STATE OF NEW YORK,
Defendants.
________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon.

Christian F. Hummel, United States Magistrate Judge, for a Report and Recommendation
pursuant to 28 U.S.C. § 636(b) and Local Rule N.D.N.Y. 72.3(c).
In his Report-Recommendation and Order (dkt. # 4), Magistrate Judge Hummel
recommends that the complaint be dismissed for failure to comply with the pleading
standards of Fed. R. Civ. P. 8 & 10, and because he proffered allegations against only
one named defendant (the State of New York) that is protected from liability as a matter of
law by the doctrine of Eleventh Amendment immunity. Judge Hummel notes that, in light
of Plaintiff’s pro se status, Plaintiff would generally be afforded an opportunity to amend
his Complaint. However, Magistrate Judge Hummel opines that amendment would be
futile because of New York’s Eleventh Amendment immunity. Dkt. # 4 at 5. Plaintiff filed
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an objection to Magistrate Judge Hummel’s Report and Recommendation. Dkt. # 5.
II.

STANDARD OF REVIEW
When objections to a magistrate judge's report and recommendation are lodged,

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.” See 28
U.S.C. § 636(b); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d
Cir.1997)(The Court must make a de novo determination to the extent that a party makes
specific objections to a magistrate's findings.). “[E]ven a pro se party's objections to a
Report and Recommendation must be specific and clearly aimed at particular findings in
the magistrate's proposal, such that no party be allowed a second bite at the apple by
simply relitigating a prior argument.” Machicote v. Ercole, 2011 WL 3809920, at * 2
(S.D.N.Y., Aug. 25, 2011)(citations and interior quotation marks omitted); DiPilato v.
7-Eleven, Inc., 662 F. Supp.2d 333, 340 (S.D.N.Y. 2009)(same).
General or conclusory objections, or objections which merely recite the same
arguments presented to the magistrate judge, are reviewed for clear error. Farid v. Bouey,
554 F. Supp. 2d 301, 306 n. 2 (N.D.N.Y. 2008); see Frankel v. N.Y.C., 2009 WL 465645 at
*2 (S.D.N.Y. Feb. 25, 2009). After reviewing the report and recommendation, the Court
may “accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge. The judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b).
III.

DISCUSSION
Plaintiff’s objections are confusing and rambling, but he fails to make specific

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objections to Magistrate Judge Hummel’s report. Accordingly, the Court reviews the
Report-Recommendation and Order for clear error and finds none.
Further, even under de novo review, the Court accepts and adopts Magistrate
Judge Hummel’s recommendations for the reasons stated in his report.
IV.

CONCLUSION
Thus, the Court ADOPTS the Report-Recommendation and Order (Dkt. # 4) for the

reasons stated therein, and the Complaint is DISMISSED with prejudice.
IT IS SO ORDERED.
Dated:September 3, 2014

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