Royal v. Shulkin

Filing 6

DECISION AND ORDER accepting and adopting # 5 Magistrate Judge Hummel's Report and Recommendation in its entirety. Plaintiff's claims under the ADEA are dismissed without prejudice, and that within 30 days of the date of this Decision and Order, Plaintiff may submit an Amended Complaint which corrects the pleading deficiencies identified in the Report and Recommendation, and which supercedes and replaces the Complaints filed in these actions in all respects. Plaintiff's Title V II race discrimination claim shall be permitted to proceed, and Plaintiff's disability discrimination claim (which is characterized as having been brought pursuant to Title VII) shall be construed as if brought pursuant to the Rehabilitation Act , and shall also be permitted to proceed. Service of the complaint and summonses be held in abeyanceuntil plaintiff either submits an amended complaint or after 30 days from the date of this Decision and Order expires. If plaintiff files an amended c omplaint, the Clerk of the Court shall return this case to the Magistrate Judge for review of the sufficiency of the amended complaint and for service. All papers filed in the future should be made in the Lead case 1:17-cv-1251 only. Signed by Chief Judge Glenn T. Suddaby on 3/8/18. (lmw) (Copy served upon pro se plaintiff via regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
ANTHONY ROYAL,
Plaintiff,
1:17-CV-1251
(GTS/CFH)

v.
DAVID SHULKIN, Secretary of Veterans Affairs,
Defendant.
_____________________________________________
ANTHONY ROYAL,
Plaintiff,

1:17-CV-1252
(GTS/CFH)

v.
DAVID SHULKIN, Secretary of Veterans Affairs,
Defendant.
_____________________________________________
APPEARANCES:
ANTHONY ROYAL
Plaintiff, Pro Se
67 Broad Street
Albany, New York 12202
GLENN T. SUDDABY, Chief United States District Judge

DECISION and ORDER
Currently before the Court, in these consolidated pro se civil rights actions filed by
Anthony Royal (“Plaintiff”) against the above-captioned Secretary of Veterans Affairs
(“Defendant”) alleging workplace discrimination on the basis of race and disability under Title
VII of the Civil Rights Act of 1964 (“Title VII”) and age discrimination under the Age
Discrimination in Employment Act (“ADEA”), is United States Magistrate Christian F.

Hummel’s Report-Recommendation recommending as follows: (1) that Plaintiff’s Title VII race
discrimination claim be permitted to proceed; (2) that Plaintiff’s disability discrimination claim
(which is characterized as having been brought pursuant to Title VII) be construed as if brought
pursuant to the Section 501 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), and also be
permitted to proceed; (3) that Plaintiff’s age discrimination claim under the ADEA be dismissed
without prejudice; and (4) that Plaintiff be permitted an opportunity to file Amended Complaint
correcting the pleading deficiencies in his ADEA claim. (Dkt. No. 5.) Plaintiff has not filed an
objection to the Report-Recommendation, and the deadline by which to do so has expired. (See
generally Docket Sheet.)
After carefully reviewing the relevant papers herein, including Magistrate Judge
Hummel’s thorough Report-Recommendation, the Court can find no clear error in the ReportRecommendation.1 Magistrate Judge Hummel employed the proper standards, accurately recited
the facts, and reasonably applied the law to those facts. As a result, the Report-Recommendation
is accepted and adopted in its entirety for the reasons set forth therein.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Hummel’s Report-Recommendation (Dkt. No. 5) is
ACCEPTED and ADOPTED in its entirety; and it is further

1

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
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 omitted).
2

ORDERED that Plaintiff’s claims under the ADEA are DISMISSED without
prejudice, and that, within THIRTY (30) DAYS of the date of this Decision and Order,
Plaintiff may submit an Amended Complaint which corrects the pleading deficiencies identified
in the Report-Recommendation, and which supercedes and replaces the Complaints filed in these
actions in all respects; and it is further
ORDERED that Plaintiff’s Title VII race discrimination claim shall be permitted to
proceed, and that Plaintiff’s disability discrimination claim (which is characterized as having
been brought pursuant to Title VII) shall be construed as if brought pursuant to the
Rehabilitation Act, and shall also be permitted to proceed; and it is further
ORDERED that service of the complaint and summonses be held in abeyance
until plaintiff either submits an amended complaint or, after thirty (30) days from the date of this
Decision and Order expires; and it is further
ORDERED that if plaintiff files an amended complaint, the Clerk of the Court shall
return this case to the Magistrate Judge for review of the sufficiency of the amended complaint
and for service. All papers filed in the future should be made in the Lead case 1:17-cv-1251
only.
Dated: March 8, 2018
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
Chief United States District Judge

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