Haydu v. United States Federal Government
ORDER adopting Report and Recommendations re 6 Report and Recommendations; denying as premature and impropert, without prejudice to plaintiff's right to renew 5 Motion for Judgment as a Matter of Law. ORDERED that in the event that plainti ff files an amended complaint, plaintiff may file an amendedcomplaint within THIRTY (30) DAYS of the date of this Order in compliance with the Federal Rules of Civil Procedure and the Local Rules for the United States District Court for the Northern District of New York. Signed by U.S. District Judge Mae A. D'Agostino on 2/22/13. (Attachments: # 1 Report and Recommendation) (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
UNITED STATES FEDERAL GOVERNMENT,
Downsville, New York 13755
Plaintiff Pro Se
MAE A. D’AGOSTINO, U. S. DISTRICT JUDGE
The above matter comes to me following a Report-Recommendation by Magistrate Judge ,
duly filed on the 29th day of January 2013. Following fourteen (14) days from the service thereof,
the Clerk has sent me the file, including any and all objections filed by the parties herein.
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 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, 2011 WL 933846, *1 (N.D.N.Y. 2011) (citations and footnote
omitted). 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 and 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) (holding that, “[a]s 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 file a timely objection will result in the
waiver of further judicial review and cites the 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) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the 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).
After careful review of all of the papers herein, including the Magistrate Judge’s ReportRecommendation, and no objections submitted thereto, it is
1. The Report-Recommendation is hereby adopted in its entirety.
2. In the event that plaintiff files an amended complaint, plaintiff may file an amended
complaint within THIRTY (30) DAYS of the date of this Order in compliance with the Federal
Rules of Civil Procedure and the Local Rules for the United States District Court for the Northern
District of New York.
3. If plaintiff fails to file an amended complaint within THIRTY (30) DAYS of the date
of this Order, the Clerk of the Court shall enter judgment dismissing this action without further
order of this Court.
4. The Clerk of the Court shall serve a copy of this Order upon all parties and the
Magistrate Judge assigned to this case.
IT IS SO ORDERED.
Dated: February 22, 2013
Albany, New York
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