Walker v. City of Binghamton et al
ORDER adopting 7 Report and Recommendations and dismissing Plaintiff's complaint, without prejudice, for failure to pay the required filing fee or to obtain leave to proceed in the case without prepayment of fees. Signed by Judge Brenda K. Sannes on 3/30/17. (Copy served via regular and certified mail)(rjb, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ALFRED MARION WALKER,
CITY OF BINGHAMTON, et al.,
Alfred Marion Walker
Plaintiff, pro se
Hon. Brenda K. Sannes, U. S. District Judge
MEMORANDUM-DECISION AND ORDER
On December 16, 2016, Plaintiff pro se Alfred Walker filed this action against various
public entities and officials, including the City of Binghamton, together with a motion for leave
to proceed in forma pauperis (IFP). (Dkt. Nos. 1-2). On December 21, 2016, United States
Magistrate David E. Peebles denied Plaintiff’s motion without prejudice because Plaintiff failed
to include any information concerning his financial status in his application, and the Court was
“therefore unable to make any meaningful assessment of plaintiff’s financial status.” (Dkt. No.
4, pp. 2-3). Magistrate Judge Peebles directed Plaintiff to either pay the $400.00 filing fee or
submit a proper IFP application by January 6, 2017. (Dkt. No. 4, p. 3). Magistrate Judge
Peebles noted that if Plaintiff failed to comply with the Order, the Court would issue a report
recommending that the case be dismissed. (Id.). This Order was mailed to Plaintiff, but returned
to the Court with a notation “insufficient address unable to forward,” on January 3, 2017. (Dkt.
No. 6). 1 Plaintiff has not paid the filing fee or submitted a proper IFP application.
On January 18, 2017, Magistrate Judge Peebles issued a Report and Recommendation
recommending that Plaintiff’s complaint be dismissed, without prejudice, for failure to pay the
required filing fee or to obtain leave to proceed without prepayment of fees. (Dkt. No. 7). The
Report and Recommendation was mailed to Plaintiff, but returned to the Court on January 31.
2017 with a notation on the front of the envelope “wrong post location.” (Dkt. No. 9). However,
on January 20, 2017, Plaintiff filed a document entitled “Writ of Error Qua Corum Nobis
Residant Re: Order to Cure Deficiencies” which was docketed as an Objection to the Report and
Recommendation. (Dkt. No. 8). For the reasons set forth below, the Report and
Recommendation is adopted in its entirety.
This Court reviews de novo those portions of the Magistrate Judge’s findings and
recommendations that have been properly preserved with a specific objection. Petersen v.
Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). Findings and
recommendations as to which there was no properly preserved objection are reviewed for clear
error. Id. “A proper objection is one that identifies the specific portions of the [Report and
Recommendation] that the objector asserts are erroneous and provides a basis for this assertion.”
Kruger v. Virgin Atlantic Airways, Ltd., 976 F. Supp. 2d 290, 296 (E.D.N.Y. 2013) (citation
The back of the envelope that was returned to the Court contains a handwritten notation which
is only partially legible, stating “same address as provide [sic] in my paperwork . . . as I’m not in
any federal territory district or zone.” (Dkt. No. 6, p. 2).
omitted). Properly raised objections must be “specific and clearly aimed at particular findings”
in the Report. Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009).
Findings and recommendations as to which there was no properly preserved objection are
reviewed for clear error. Id. “To the extent . . . that the party makes only conclusory or general
arguments . . . the Court will review the Report strictly for clear error.” DiPilato v. 7-Eleven,
Inc., 662 F Supp. 2d 333, 339 (S.D.N.Y. 2009).
In this case, Plaintiff’s submission is styled as a court order rescinding Magistrate Judge
Peebles’ Order on December 21, 2016, denying leave to proceed in forma pauperis. (Dkt. No. 8,
pp. 1, 13-14). The Court has been unable to decipher any specific objection to any portion of the
Report and Recommendation issued on January 18, 2017. The Court has, therefore, reviewed the
Report and Recommendation for clear error and found none.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Peebles’ Report and Recommendation (Dkt. No. 7) is
ADOPTED in all respects; and it is further
ORDERED that Plaintiff’s complaint in this case is DISMISSED, without prejudice, for
failure to pay the required filing fee or to obtain leave to proceed in the case without prepayment
of fees; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
March 30, 2017
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