Boyd v. Albany County Department of Social Services et al

Filing 8

DECISION AND ORDERED, that the Report-Recommendation (Dkt. No. 6) is APPROVED and ADOPTED in its entirety; and it is further ORDERED, that the following claims are DISMISSED without prejudice and with leave to replead: (1) claims that Plaintiff is en titled to legally pursue against Marillac and The LegalAid Society; (2) claims against the County Defendants for purported violations of 42 U.S.C. §§ 1981, 1983, and 1985; and (3) claims under the ADA; and it is furtherORDERED, that the fol lowing claims are DISMISSED with prejudice: (1) claims under Title 18 of the United States Code; (2) claims under the Federal Administrative Procedure Act and Freedom of Information Act; (3) claims under New Yorks Freedom of Information Law; and (4) claims against Marillac and The Legal Aid Society pursuant to 42 U.S.C. § 1983. Signed by Senior Judge Lawrence E. Kahn on May 28, 2015. ***A copy of this order was served upon the pro se plaintiff by regular US mail. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
TAMESHA N. BOYD,
Plaintiff,
-against-

1:14-CV-1386 (LEK/RFT)

ALBANY COUNTY DEPARTMENT OF
SOCIAL SERVICES, et al.,
Defendants.
___________________________________
DECISION AND ORDER
This matter comes before the Court following a Report-Recommendation filed on March 27,
2015, by the Honorable Randolph F. Treece, U.S. Magistrate Judge, pursuant to 28 U.S.C. § 636(b)
and Local Rule 72.3. Dkt. No. 6 (“Report-Recommendation”). Pro se Plaintiff Tamesha N. Boyd
(“Plaintiff”) filed Objections. Dkt. No. 7 (“Objections”).1
Within fourteen days after a party has been served with a copy of a magistrate judge’s reportrecommendation, the party “may serve and file specific written objections to the proposed findings
and recommendations.” FED. R. CIV. P. 72(b); L.R. 72.1(c). If a party objects to a ReportRecommendation, “the Court subjects that portion of the report-recommendation to a de novo
review.” Williams v. Roberts, No. 11-CV-0029, 2012 WL 760777, at *3 (N.D.N.Y. Mar. 7, 2012)
(citing FED. R. CIV. P. 72(b)(2) and 28 U.S.C. § 636(b)(1)(C)); see also United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). If no objections are made, or if an objection is general,
conclusory, perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district
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The deadline for Plaintiff to file objections to the Report-Recommendation was April 10,
2015. See FED. R. CIV. P. 72(b); L.R. 72.1(c). Plaintiff’s Objections are dated April 13, 2015, and
were filed on April 14, 2015. Objs. Though Plaintiff’s Objections are therefore untimely, the Court
will nevertheless consider them in light of Plaintiff’s pro se status.

court should review that aspect of a report-recommendation for clear error. Barnes v. Prack, No.
11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F. Supp. 2d
301, 306-07 & n.2 (N.D.N.Y. 2008); see also Machicote v. Ercole, No. 06 Civ. 13320, 2011 WL
3809920, at *2 (S.D.N.Y. Aug. 25, 2011) (“[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.”). “A [district] judge . . . 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).
Plaintiff objects to the portion of the Report-Recommendation dismissing her claims under
the Americans with Disabilities Act (“ADA”) on the ground that Plaintiff failed to “plead facts
plausibly suggesting that her alleged disability can meet all of the elements contained in the ADA’s
definition of disability.” See Objs. at 4; Report-Rec. at 12. “To state a claim under Title II of the
ADA, the plaintiff must allege ‘that (1) [he or she is a] qualified individual[ ] with a disability; (2)
that the defendants are subject to the ADA; and (3) that plaintiff[ ] w[as] denied the opportunity to
participate in or benefit from defendants’ services, programs, or activities, or w[as] otherwise
discriminated against by defendants, by reason of plaintiff[’s] disabilities.’” Shomo v. City of N.Y.,
579 F.3d 176, 185 (2d Cir. 2009) (citation omitted) (alterations in original). In the ReportRecommendation, Judge Treece found that although Plaintiff alleged that she suffered from a
“mental impairment,” she failed to plead any facts plausibly suggesting that her mental impairment
“limits one or more major life activities,” Report-Rec. at 12 (quoting 42 U.S.C. § 12102(1)), or that
“Defendants denied her some benefit to which she was entitled and that such denial was because of
her disability,” id. In her Objections, Plaintiff clarifies that she suffers from Post-Traumatic Stress
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Disorder, but still fails to allege that it substantially limits a major life activity, or that Defendants
denied her benefits to which she was entitled. See Objs. at 4. The Court therefore finds that Judge
Treece properly dismissed Plaintiff’s ADA claim without prejudice.
Plaintiff also generally requests leave to replead her claims. See id. at 1. However, she
waives any objection to portions of the Report-Recommendation dismissing with prejudice her
claims under: (1) the United States Criminal Code; (2) New York’s Freedom of Information Law;
and (3) the Federal Administrative Procedure Act. See id. at 5. Furthermore, Plaintiff does not
raise specific objections to the portions of the Report-Recommendation that dismiss other claims
with prejudice. See generally id. Consequently, the Court has reviewed the portions of the ReportRecommendation wherein Judge Treece denied Plaintiff’s claims with prejudice and has found
none.
The remainder of Plaintiff’s Objections merely reiterate allegations made in the Complaint,
or are conclusory. See generally id. Accordingly, the Court has reviewed those portions of the
Report-Recommendation for clear error and has found none.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 6) is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED, that the following claims are DISMISSED without prejudice and with leave
to replead: (1) claims that Plaintiff is entitled to legally pursue against Marillac and The Legal
Aid Society; (2) claims against the County Defendants for purported violations of 42 U.S.C.
§§ 1981, 1983, and 1985; and (3) claims under the ADA; and it is further
ORDERED, that the following claims are DISMISSED with prejudice: (1) claims under
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Title 18 of the United States Code; (2) claims under the Federal Administrative Procedure Act and
Freedom of Information Act; (3) claims under New York’s Freedom of Information Law; and (4)
claims against Marillac and The Legal Aid Society pursuant to 42 U.S.C. § 1983; and it is further
ORDERED, that the Clerk of the Court refer Plaintiff to the Northern District of New York
Federal Court Bar Association’s Pro Se Assistance Program
(www.ndnyfcba.org/about-us/pro-se-assistance-program) so that she can obtain assistance with
amending her Complaint as outlined in the Report-Recommendation. Plaintiff is advised that any
attorney assigned to assist her through this program is not her attorney in this matter and is simply
providing a service to her free of charge by which she can draft an amended complaint; and it is
further
ORDERED, that the Clerk of the Court serve a copy of this Order on Plaintiff in accordance
with the Local Rules.
IT IS SO ORDERED.
DATED:

May 28, 2015
Albany, New York

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