Ouderkirk v. The United States et al

Filing 17

ORDERED, that the Report-Recommendation (Dkt. No. 12) is APPROVED and ADOPTED in its entirety; and it is further ORDERED, that Plaintiffs Amended Complaint (Dkt. No. 9) is DISMISSED with prejudice; and it is further ORDERED, that Plaintiffs motion to submit a second amended complaint (Dkt. No. 16) is DENIED; and it is further ORDERED, that the Clerk of the Court is directed to close this case. Signed by Senior Judge Lawrence E. Kahn on April 12, 2018. (Copy served via regular and certified 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

March 8, 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. 12 (“Report-Recommendation”). Pro se plaintiff
Jennifer A. Ouderkirk timely filed objections. Dkt. No. 15 (“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
report-recommendation 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 her amended complaint, Dkt. No. 9

(“Amended Complaint”), fails to state a claim and is subject to dismissal. Specifically, Plaintiff
argues that defendants John C. Rowley, Andrew McElwee, and Gwen Wilkinson are not entitled
to judicial or prosecutorial immunity, because each acted “in the clear absence of jurisdiction.”
Objs. at 2. However, the Amended Complaint—like the original complaint, Dkt. No. 1—includes
no allegations suggesting that Rowley, McElwee, or Wilkinson acted in the absence of
jurisdiction. Construed liberally, the Amended Complaint alleges significant errors committed by
Rowley and McElwee, but none of these allegations suggest that Defendants acted outside of
their respective roles in the judicial process. Therefore, Judge Peebles correctly concluded that
Plaintiff’s Amended Complaint should be dismissed. Given the Court’s doubt that an opportunity
to file a second amended complaint will prove meaningful, the Court dismisses this action with
prejudice. See Abascal v. Hilton, No. 04-CV-1401, 2008 WL 268366, at *8 (N.D.N.Y. Jan. 30,
2008) (Kahn, J.) (“Of course, granting a pro se plaintiff an opportunity to amend is not required
where the plaintiff has already been given a chance to amend his pleading.”).
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IV.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 12) is APPROVED and

ADOPTED in its entirety; and it is further
ORDERED, that Plaintiff’s Amended Complaint (Dkt. No. 9) is DISMISSED with
prejudice; and it is further
ORDERED, that Plaintiff’s motion to submit a second amended complaint (Dkt. No. 16)
is DENIED; and it is further
ORDERED, that the Clerk of the Court is directed to close this case; 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:

April 12, 2018
Albany, New York

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