Passero v. Schultz et al

Filing 13

DECISION & ORDER: Ordered that Plaintiff's 12 objections to the Report-Recommendation are hereby overruled. Accepting and adopting 11 Report and Recommendations and Plaintiff's 10 Amended Complaint is dismissed with prejudice and the Clerk of Court is directed to close the case. Signed by Senior Judge Thomas J. McAvoy on 3/25/2019. (Copy served Pro Se Plaintiff via regular and certified mail)(jdp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
DANIEL PASSERO,
Plaintiff,
v.

1:17-CV-1296
(TJM/CFH)

MEREDITH SCHULZ, Washington County
APS Case Worker, ANDREW WILLIAMSON,
Washington County APS Case Worker,
Defendants.
___________________________________________
Thomas J. McAvoy,
Sr. U.S. District Judge

DECISION & ORDER
This pro se action, brought pursuant to 42 U.S.C. § 1983, alleges that Defendants,
who are Adult Protective Services Case Workers assigned to assist Plaintiff with the
issues caused by his disabilities, violated Plaintiff’s Fifth and Fourteenth Amendment
rights by failing to provide proper care and services. Plaintiff alleges that Defendants
failed to assist him with housing and failed to insure he received proper medical care for
his periodontitis, which led to more serious medical conditions. In his Amended Complaint
Plaintiff also seeks relief pursuant to state law. The Court referred the action to the Hon.
Christian F. Hummel, United States Magistrate Judge, for a Report-Recommendation
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
The Report-Recommendation, dated August 6, 2018, recommends that the Court

1

dismiss Plaintiff’s Amended Complaint without prejudice to filing any state-law claims he
has in state court. See dkt. # 11. Magistrate Judge Hummel finds that Plaintiff has failed
to state a claim for a violation of his Fourth Amendment equal protection or Fifth
Amendment due process rights, even though he has been granted the opportunity to
replead. Such claims, he concludes, should be dismissed with prejudice.
Plaintiff filed timely objections to the Report-Recommendation. See dkt. # 12.
While Plaintiff’s objections concentrate on Defendants’ alleged failure to provide
appropriate treatment for his periodontal disease, the Court finds that the objections could
be considered a general objection to Magistrate Hummel’s findings and will address them
in that way. When objections to a magistrate judge’s Report-Recommendation are
lodged, the 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)(1). After such a review, 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.” Id.
Having reviewed the record de novo and having considered the issues raised in the
Plaintiffs’ objections, this Court has determined to accept and adopt the recommendation
of Magistrate Judge Hummel for the reasons stated in the Report-Recommendation.
It is therefore ORDERED that Plaintiff’s objections to the Report-Recommendation
of Magistrate Judge Hummel, dkt. # 12, are hereby OVERRULED. The ReportRecommendation, dkt. # 11, is hereby ACCEPTED and ADOPTED, and the Plaintiff’s

2

Amended Complaint is hereby DISMISSED with prejudice as to Plaintiff’s federal claims.
Such dismissal, however, is without prejudice to the Plaintiff commencing an action in
state court to address any state-law claims he has. The Court takes no position on
whether Plaintiff could succeed on such claims. The Clerk of Court is directed to CLOSE
the case.

IT IS SO ORDERED.
Dated:March 25, 2019

3