Guarneri v. Schoharei County Dept of Socail Service et al

Filing 6

DECISION and ORDER re 4 Report and Recommendations. Accordingly, Judge Lovrics Order and Report-Recommendation, Dkt. No. 4, is ACCEPTED and ADOPTED. Thus, it is hereby ORDERED that Plaintiffs claims pursuant to (1) 42 U.S.C. § 1983 against De fendants Schoharie County, Becker, Sammon, Goodearu, Russel, and Brandt, (2) 42 U.S.C. § 1983 against Defendant Cuomo in his individual capacity, (3) the ADA, and (4) New York state common law negligence, are DISMISSED WITH LEAVE TO REPLEAD purs uant to 28 U.S.C. § 1915(e)(2)(B); and, it is further ORDERED that Plaintiffs claims pursuant to 42 U.S.C. § 1983 against DefendantsOffice of Temporary and Disability Assistance and Cuomo in his official capacity are DISMISSED WITHOUT LEAVE TO REPLEAD pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further ORDERED that Plaintiff is granted leave of thirty (30) days from the date of this Decision and Order in which to file an amended complaint. If Plaintiff files an amended compla int within thirty (30) days of the date of this Decision and Order, the Clerk of the Court is directed to send it to Judge Lovric for initial review. If Plaintiff does not file an amended complaint within thirty (30) days of the date of this Decision and Order, the Clerk of the Court is directed to close the file in this case. Signed by Senior Judge Thomas J. McAvoy on May 10, 2022. (Copy served via regular and certified mail)(ztc, )

Case 1:21-cv-00991-TJM-ML Document 6 Filed 05/10/22 Page 1 of 3

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
JOSEPH GUARNERI,
Plaintiff,
v.

1:21-CV-0991
(TJM/ML)

SCHOHARIE COUNTY DEPARTMENT
OF SOCIAL SERVICE; COMMISSIONER
DONNA BECKER; ACTING COMMISSIONER
JULLIE SAMMON; WORKER MELISSA
GOODEARU; WORKER KAYLTHIN RUSSEL;
OFFICE OF TEMPORARY AND DISABILITY
ASSISTANCE; CASE WORKER LEANN BRADT,
of Rehabilitation Support; and GOVERNOR CUOMO,
Defendants.
________________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION and ORDER
I.

INTRODUCTION
The Clerk of the Court sent the pro se Complaint (Dkt. No. 1) together with an

application to proceed in forma pauperis (Dkt. No. 3) filed by Joseph Guarneri (“Plaintiff”)
to the Hon. Miroslav Lovric, United States Magistrate Judge, for review. Judge Lovric
granted Plaintiff’s in forma pauperis application, and recommended:
-that the Court DISMISS WITH LEAVE TO REPLEAD Plaintiff’s claims
pursuant to (1) 42 U.S.C. § 1983 against Defendants Schoharie County,
Becker, Sammon, Goodearu, Russel, and Brandt, (2) 42 U.S.C. § 1983
against Defendant Cuomo in his individual capacity, (3) the ADA, and (4)
New York state common law negligence, for failure to state a claim upon
which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B);

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Case 1:21-cv-00991-TJM-ML Document 6 Filed 05/10/22 Page 2 of 3

and,
-that the Court DISMISS WITHOUT LEAVE TO REPLEAD Plaintiff’s claims
pursuant to 42 U.S.C. § 1983 against Defendants Office of Temporary and
Disability Assistance and Cuomo in his official capacity, because those
claims seek monetary relief against Defendants who are immune from such
relief pursuant to 28 U.S.C. § 1915(e)(2)(B).
Order and Rep-Rec., Dkt. No. 4, at 23-24.
Plaintiff did not object to the Order and Report-Recommendation, and the time to
do so has passed. 1
II.

DISCUSSION
After examining the record, this Court has determined that the Order and

Report-Recommendation is not subject to attack for plain error or manifest injustice. The
Court will accept and adopt Judge Lovric’s recommendations for the reasons stated within
the Order and Report-Recommendation.
III.

CONCLUSION
Accordingly, Judge Lovric’s Order and Report-Recommendation, Dkt. No. 4, is

ACCEPTED and ADOPTED. Thus, it is hereby
ORDERED that Plaintiff’s claims pursuant to (1) 42 U.S.C. § 1983 against
Defendants Schoharie County, Becker, Sammon, Goodearu, Russel, and Brandt, (2) 42
U.S.C. § 1983 against Defendant Cuomo in his individual capacity, (3) the ADA, and (4)
New York state common law negligence, are DISMISSED WITH LEAVE TO REPLEAD

Judge Lovric’s Order and Report-Recommendation was initially served on Plaintiff
by mailing to what turned out to be an improper address, resulting in it being returned as
undeliverable. Dkt. No. 5. Then, on January 3, 2022, the Clerk of the Court reserved the
Order and Report-Recommendation on Plaintiff by mailing it to Plaintiff’s address listed in
the Complaint. Id. No objections have been filed to date.
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Case 1:21-cv-00991-TJM-ML Document 6 Filed 05/10/22 Page 3 of 3

pursuant to 28 U.S.C. § 1915(e)(2)(B); and, it is further
ORDERED that Plaintiff’s claims pursuant to 42 U.S.C. § 1983 against Defendants
Office of Temporary and Disability Assistance and Cuomo in his official capacity are
DISMISSED WITHOUT LEAVE TO REPLEAD pursuant to 28 U.S.C. § 1915(e)(2)(B); and
it is further
ORDERED that Plaintiff is granted leave of thirty (30) days from the date of
this Decision and Order in which to file an amended complaint. If Plaintiff files an
amended complaint within thirty (30) days of the date of this Decision and Order, the
Clerk of the Court is directed to send it to Judge Lovric for initial review. If Plaintiff does
not file an amended complaint within thirty (30) days of the date of this Decision and
Order, the Clerk of the Court is directed to close the file in this case.
IT IS SO ORDERED.
Dated: May 10, 2022

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