Ouderkirk v. The United States et al

Filing 10

ORDERED, that the Report-Recommendation (Dkt. No. 4) is APPROVED and ADOPTED in its entirety; and it is further ORDERED, that Plaintiffs motion for leave to proceed in forma pauperis (Dkt. No. 2) is GRANTED; and it is further ORDERED, that Plaintiffs complaint (Dkt. No. 1) is DISMISSED without prejudice; and it is further ORDERED, that Plaintiffs amended complaint (Dkt. No. 9) is referred to the Magistrate Judge for review. Signed by Senior Judge Lawrence E. Kahn on March 01, 2018. (Copy served via regular mail)(sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JENNIFER A. OUDERKIRK,
Plaintiff,
-against-

3:18-CV-0053 (LEK/DEP)

THE UNITED STATES, et al.,
Defendants.

ORDER
I.

INTRODUCTION
This matter comes before the Court following a Report-Recommendation filed on

January 30, 2018, by the Honorable David E. Peebles, U.S. Magistrate Judge, pursuant to
28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 4 (“Report-Recommendation”). Pro se plaintiff
Jennifer A. Ouderkirk timely filed objections. Dkt. No. 8 (“Objections”).
II.

LEGAL STANDARD
Within fourteen days after a party has been served with a copy of a magistrate judge’s

report-recommendation, the party “may serve and file specific, written objections to the
proposed findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). If no objections
are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an
argument made to the magistrate judge, a district court need review that aspect of a reportrecommendation only for clear error. Barnes v. Prack, No. 11-CV-857, 2013 WL 1121353, at *1
(N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07, 306 n.2 (N.D.N.Y.
2008), abrogated on other grounds by Widomski v. State Univ. of N.Y. at Orange, 748 F.3d 471
(2d Cir. 2014); see also Machicote v. Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2

(S.D.N.Y. Aug. 25, 2011) (“[E]ven a pro se party’s objections to a Report and Recommendation
must be specific and clearly aimed at particular findings in the magistrate’s proposal, such that no
party be allowed a second bite at the apple by simply relitigating a prior argument.”). “A [district]
judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” § 636(b). Otherwise, a court “shall make a de novo determination
of those portions of the report or specified proposed findings or recommendations to which
objection is made.” Id.
III.

DISCUSSION
Plaintiff objects to Judge Peebles’s determination that defendants John C. Rowley and

Andrew McElwee are entitled to judicial and prosecutorial immunity, respectively. Objs. at 2–4.
She argues that neither is entitled to immunity because Rowley and McElwee acted “in the
absence of jurisdiction.” Id. at 2. While the cases she cites do not support this proposition,
Plaintiff is correct that an exception to the immunity doctrines is “activity . . . taken in the
complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 12 (1991). However, Plaintiff
presents no facts suggesting that Rowley or McElwee acted “in the complete absence of all
jurisdiction.” While Plaintiff alleges that “mistakes . . . plagued [her] case since its beginning,”
Objs. at 3, her allegations and Objections do not indicate that Rowley acted “over a general
subject matter” that is outside the purview of judges, Shuster v. Oppleman, 962 F. Supp. 394,
397 (S.D.N.Y. 1997), or that McElwee’s conduct extended beyond those “intimately associated
with the judicial phase of criminal process,” Imbler v. Pachtman, 424 U.S. 409, 430 (1976).
Plaintiff’s allegations, which lack significant detail, appear to stem from Rowley and McElwee’s
execution of judicial process in a criminal matter. Therefore, Judge Peebles’s correctly concluded
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that Plaintiff’s claims against Rowley and McElwee, as alleged in her original complaint, must
be dismissed on immunity grounds.
IV.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 4) is APPROVED and

ADOPTED in its entirety; and it is further
ORDERED, that Plaintiff’s motion for leave to proceed in forma pauperis (Dkt. No. 2)
is GRANTED; and it is further
ORDERED, that Plaintiff’s complaint (Dkt. No. 1) is DISMISSED without prejudice;
and it is further
ORDERED, that Plaintiff’s amended complaint (Dkt. No. 9) is referred to the Magistrate
Judge for review; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order on Plaintiff in
accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

March 01, 2018
Albany, New York

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