Nuphlo Entertainment, Inc. et al v. Miller et al

Filing 75

ORDER accepting 68 Report and Recommendations. Defts' 9 , 12 , 23 Motions to Dismiss are granted. Pltf's following claims are dismisssed with leave to replead: (1) section 1983 claims against all Defts, including the conspiracy claim asserted against all Defts and the equal protection claim asserted against the Trooper Defts; (2) section 1981 claims against the City Defts and Deft Foothills; and (3) sections 2000 and 2000a-2 claims against Deft Foothills. Pltf's CAT claim an d his claims arising under section 2000a and 2000a-2, insofar as they seek monetary relief, are dismissed with prejudice. City Defts' motion to strike certain portions of the amended complaint, see Dkt No. 9, is denied. Pltf's 24 Motion for leave to amend is granted in part, and Pltf is permitted to submit a revised second amended complaint by 9/12/14, subject to dismissal of all claims on behalf of Pltf Nuphlo Entertainment, Inc., as well as those claims dismissed with prejudice. Signed by Senior Judge Frederick J. Scullin, Jr on 8/13/14. [Served by mail.] (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________________
TIMOTHY A. BARON,
Plaintiff,
v.

3:13-CV-153
(FJS/DEP)

DICK MILLER, in his official capacity as city Mayor,
of the City of Oneonta, in his official capacity as President
of the Board of Foothills Performing Center, Inc., of
Oneonta, New York and in his individual capacity;
TIMOTHY WEST, JR., New York State Trooper, in
his individual capacity; JACOB LAKOMSKI, New
York State Trooper, in his individual capacity; and
FOOTHILLS PERFORMING ARTS CENTER, INC.,
Defendants.
__________________________________________________
APPEARANCES

OF COUNSEL

TIMOTHY A. BARON
Oneonta, New York 13820
Plaintiff pro se
LEMIRE JOHNSON, LLC
P. O. Box 2485
2534 Route 9
Malta, New York 12020
Attorneys for Defendant Miller

GREGG T. JOHNSON, ESQ.
APRIL J. LAWS, ESQ.
MARY E. KISSANE, ESQ.
TIMOTHY J. HIGGINS, ESQ.

OFFICE OF NEW YORK STATE
ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants West and Lakomski

AARON M. BALDWIN, AAG

CORRIGAN, McCOY & BUSH, PLLC
220 Columbia Turnpike
Rensselaer, New York 12144
Attorneys for Defendant Foothills Performing
Arts Center, Inc.

SCOTT W. BUSH, ESQ.

SCULLIN, Senior Judge

ORDER
Currently before the Court is Magistrate Judge Peebles' April 29, 2014 Report and
Recommendation, see Dkt. No. 68, and Plaintiff's objections thereto, see Dkt. No. 69.
After reviewing a magistrate judge's recommendations, the district court may accept,
reject or modify those recommendations. See 28 U.S.C. § 636(b)(1). The court reviews de novo
those portions of the magistrate judge's recommendations to which a party objects. See Pizzaro
v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). "'"If, however, the party makes only
conclusory or general objections, . . . the Court reviews the Report and Recommendation only for
clear error."'" Salmini v. Astrue, No. 3:06-CV-458, 2009 WL 179741, *1 (N.D.N.Y. June 23,
2009) (quoting [Farid v. Bouey, 554 F. Supp. 2d 301] at 306 [(N.D.N.Y. 2008)] (quoting
McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007))). Finally, even if the parties
file no objections, the court must ensure that the face of the record contains no clear error. See
Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003) (quotation
omitted).
In light of Plaintiff's conclusory objection to Magistrate Judge Peebles' recommendations,
the Court has reviewed Magistrate Judge Peebles' April 29, 2014 Report and Recommendation
for clear error; and, finding none, the Court hereby
ORDERS that Magistrate Judge Peebles' April 29, 2014 Report and Recommendation is
ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendants' motions to dismiss, see Dkt. Nos. 9, 12, 23, are GRANTED;
and the Court further
ORDERS that the following of Plaintiff's claims are DISMISSED with leave to
replead: (1) section 1983 claims against all Defendants, including the conspiracy claim asserted
against all Defendants and the equal protection claim asserted against the Trooper Defendants;
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(2) section 1981 claims against the City Defendants and Defendant Foothills; and (3) sections
2000 and 2000a-2 claims against Defendant Foothills; and the Court further
ORDERS that Plaintiff's CAT claim and his claims arising under section 2000a and
2000a-2, insofar as they seek monetary relief, are DISMISSED with prejudice; and the Court
further
ORDERS that the City Defendants' motion to strike certain portions of the amended
complaint, see Dkt No. 9, is DENIED; and the Court further
ORDERS that Plaintiff's motion for leave to amend, see Dkt. No. 24, is GRANTED in
part, and Plaintiff is permitted to submit a revised second amended complaint for filing within
thirty (30) days of the date of this Order, subject to dismissal of all claims on behalf of
Plaintiff Nuphlo Entertainment, Inc., as well as those claims dismissed with prejudice; and the
Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.

IT IS SO ORDERED.

Dated: August 13, 2014
Syracuse, New York

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