Virola v. Gonyo et al

Filing 8

MEMORANDUM-DECISION AND ORDER: It is ORDERED, that the Report and Recommendation (Dkt. No. 5 ) is APPROVED and ADOPTED in its entirety; and it is further ORDERED, that Plaintiff's IFP application, (Dkt. No. 2 ) is DENIED; and it is further ORD ERED, that if Plaintiff does not file an amended IFP application within thirty (30) days of this Memorandum-Decision and Order, the Clerk shall close this action without further order from the court. Signed by Senior Judge Lawrence E. Kahn on 1/28/2025. (Copy served via regular mail)(mmg).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
KIMBERLY VIROLA,
Plaintiff,
-against-

1:24-cv-1393 (LEK/DJS)

KEVIN MATTHEW GONYO, et al.,
Defendants.
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Kimberly Virola commenced this action by filing a complaint, Dkt. No. 1

(“Complaint”), and an application to proceed in forma pauperis, Dkt. No. 2 (“IFP Application”).
On December 2, 2024, the Honorable Daniel J. Stewart, United States Magistrate Judge, issued a
report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d),
recommending the Court deny the IFP Application and grant Plaintiff the opportunity to submit a
new application. Dkt. No. 5 (“Report and Recommendation”) at 2.
No party has filed objections to the Report and Recommendation. For the reasons that
follow, the Court adopts the Report and Recommendation in its entirety.
II.

BACKGROUND
In the Report and Recommendation, Judge Stewart found that on Plaintiff’s IFP

Application, she “stated that she is employed,” but she did not “answer the following question
seeking information about how much money she earns from that employment.” R. & R. at 2.
Judge Stewart noted that the amount of Plaintiff’s income “is critical information for the Court to
assess whether [she] has the ability to pay the filing fee here.” Id. Accordingly, Judge Stewart

recommended denying the IFP Application but affording Plaintiff “the opportunity to submit a
new application containing more detailed information about her income, assets, and other
financial obligations.” Id.
III.

LEGAL STANDARD
“Within fourteen days after being served with a copy [of the Magistrate Judge’s report

and recommendation], any party may serve and file written objections to such proposed findings
and recommendations as provided by rules of court.” 28 U.S.C. § 636(b)(1)(C); see also L.R.
72.1. However, if no objections are made, a district court need only review a report and
recommendation for clear error. See DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 339
(S.D.N.Y. 2009) (“The district court may adopt those portions of a report and recommendation to
which no timely objections have been made, provided no clear error is apparent from the face of
the record.”). Clear error “is present when upon review of the entire record, the court is left with
the definite and firm conviction that a mistake has been committed.” Rivera v. Fed. Bureau of
Prisons, 368 F. Supp. 3d 741, 744 (S.D.N.Y. 2019) (cleaned up). Upon review, a 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)(C).
IV.

DISCUSSION
No party objected to the Report and Recommendation within fourteen days after being

served with a copy of it. Accordingly, the Court reviews the Report and Recommendation for
clear error. See DiPilato, 662 F. Supp. 2d at 339. Having found none, the Court approves and
adopts the Report and Recommendation in its entirety. The Court provides Plaintiff thirty days to
file an amended IFP application.

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V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report and Recommendation, Dkt. No. 5, is APPROVED and

ADOPTED in its entirety; and it is further
ORDERED, that Plaintiff’s IFP Application, Dkt. No. 2, is DENIED; and it is further
ORDERED, that if Plaintiff does not file an amended IFP application within thirty (30)
days of this Memorandum-Decision and Order, the Clerk shall close this action without further
order from the Court; and it is further
ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

January 28, 2025
Albany, New York
LAWRENCE E. KAHN
United States District Judge

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