Probst v. Jankowski

Filing 8

ORDER adopting Report and Recommendations re 6 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Stewart's Report-Recommendation and Order (Dkt. No. 6) is ADOPTED in its entirety; and the Court further ORDERS that Pla intiff's complaint in this action is dismissed in all respects, with leave to file an amended complaint within thirty (30) days of the date of this Order; and the Court further ORDERS that, if Plaintiff fails to file an amended complaint with in thirty (30) days of this Order, the Clerk of the Court shall enter judgment in Defendant's favor and close this case, without further order of this Court; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on Plaintiff in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 6/15/2017. (Copy served via regular and certified mail)(ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
CHARLES PAUL PROBST, 4TH,
Plaintiff,
vs.

1:17-CV-0136
(MAD/DJS)

KATHLEEN JANKOWSKI,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

CHARLES PAUL PROBST, 4TH
98 Breslin Ave.
Cohoes, New York 12047
Plaintiff pro se
Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff commenced this action pro se on February 7, 2017, against Kathleen Jankowski.
See Dkt. No. 1. Plaintiff asserts a civil rights claim against Defendant pursuant to 42 U.S.C. §
1983. See id. In the Complaint, Plaintiff asserts the sole allegation of a "[f]alse restraining order
due to no harm and assault" against Defendant. Dkt. No. 1 at 2. Plaintiff's prayer for relief
requests that this Court will "[c]lear record of arrest." Dkt. No. 1 at 4. Magistrate Judge Stewart
granted Plaintiff's application to proceed in forma pauperis and in a Report-Recommendation and
Order dated March 23, 2017, reviewed the sufficiency of the Complaint. See Dkt. No. 5; see Dkt.
No. 6. In his review, Magistrate Judge Stewart was unable to discern what Constitutional right
has been violated or why the action was brought against the named Defendant and, therefore,
recommended a dismissal of the complaint with Plaintiff provided the opportunity to amend. See
Dkt. No. 6 at 4-5.

"[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2003) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations
omitted). The Second Circuit has opined that the court is obligated to "make reasonable
allowances to protect pro se litigants" from inadvertently forfeiting legal rights merely because
they lack a legal education. Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2003)
(quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
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). However,
when a party declines to file objections or files "[g]eneral or conclusory objections or objections
which merely recite the same arguments [that he presented] to the magistrate judge," the court
reviews those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL
933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted); see McAllan v. Von Essen,
517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007). 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).
A litigant's failure to file objections to a magistrate judge's report-recommendation, even
when that litigant is proceeding pro se, waives any challenge to the report on appeal. See Cephas
v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) ("As a rule, a party's failure to object to any purported
error or omission in a magistrate judge's report waives further judicial review of the point"
(citation omitted)). A pro se litigant must be given notice of this rule; notice is sufficient if it
informs the litigant that the failure to timely object will result in the waiver of further judicial
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review and cites pertinent statutory and civil rules authority. See Frank v. Johnson, 968 F.2d 298,
299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) ("a
pro se party's failure to object to a . . . report and recommendation . . . does not [waive his] right
to appellate review . . . unless the magistrate's report explicitly states that failure to object . . . will
preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and
[former] 6(e) of the Federal Rules of Civil Procedure").
In the present matter, Magistrate Judge Stewart provided Plaintiff adequate notice that he
was required to file any objections to the Report-Recommendation and Order, and informed him
that failure to object to any portion of the report would preclude his right to appellate review. See
Dkt. No. 6 at 7. Specifically, Magistrate Judge Stewart informed Plaintiff that "FAILURE TO
OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing
Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §
636(b)(1); FED. R. CIV. P. 72 & 6(a)." See id. Magistrate Judge Stewart clearly provided plaintiff
with sufficient notice of the consequences of failing to object to the Report-Recommendation and
Order.
Despite the notice provided by Magistrate Judge Stewart, Plaintiff has failed to make any
objection to the Report-Recommendation and Order, and therefore, the standard of review is clear
error. Upon review of Magistrate Judge Stewart's Report-Recommendation and Order, Plaintiff's
submissions, and the applicable law, the Court finds no clear error in Magistrate Judge Stewart's
recommendations and hereby affirms and adopts the Report-Recommendation and Order as the
opinion of the Court. Additionally, in consideration of Plaintiff's pro se status, the Court will

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afford Plaintiff with the opportunity to amend his complaint to sufficiently set forth a claim on
which relief may be granted.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Stewart's Report-Recommendation and Order (Dkt. No.
6) is ADOPTED in its entirety; and the Court further
ORDERS that Plaintiff's complaint in this action is dismissed in all respects, with leave to
file an amended complaint within thirty (30) days of the date of this Order;1 and the Court further
ORDERS that, if Plaintiff fails to file an amended complaint within thirty (30) days of
this Order, the Clerk of the Court shall enter judgment in Defendant's favor and close this case,
without further order of this Court; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on Plaintiff in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: June 15, 2017
Albany, New York

If Plaintiff wishes to file an amended complaint, the Court advises Plaintiff to follow
Magistrate Judge Stewart's guidance outlined on pages five and six of the ReportRecommendation and Order.
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