Li v. The Post Standard et al
DECISION AND ORDERED, that the Report-Recommendation is APPROVED and ADOPTED in its ENTIRETY; and it is further ORDERED, that Plaintiffs Complaint (Dkt. No. 1) is DISMISSED with prejudice for failure to state a claim on which relief may be granted; a nd it is further ORDERED, that no opportunity to amend the Complaint is provided to Plaintiff; and it is further ORDERED, that Plaintiffs renewed Application to proceed in forma pauperis (Dkt. No. 13) is DENIED as moot. Signed by Senior Judge Lawrence E. Kahn on June 16, 2011. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
THE POST STANDARD, et al.,
DECISION AND ORDER
This matter comes before the Court following a Report-Recommendation filed on May 5,
2011, by the Honorable George H. Lowe, United States Magistrate Judge, pursuant to 28 U.S.C. §
636(b) and L.R. 72.3 of the Northern District of New York. Report-Rec. (Dkt. No. 14). After
fourteen days from the service thereof, the Clerk has sent the entire file to the undersigned,
including the objections by Plaintiff Xiang Li (“Plaintiff” or “Li”), which were filed on May 19,
2011. Objections (Dkt. No. 15).
The Court is to “make 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). “A
[district] judge . . . may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id. Where, however, an objecting “party makes
only conclusory or general objections, or simply reiterates his original arguments, the Court reviews
the Report and Recommendation only for clear error.” Farid v. Bouey, 554 F. Supp. 2d 301, 307
(N.D.N.Y. 2008) (quoting McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007))
(citations and quotations omitted); see also Brown v. Peters, No. 95-CV-1641, 1997 WL 599355, at
*2-3 (N.D.N.Y. Sept. 22, 1997). “A [district] judge . . . 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).
Plaintiff appears to raise three main arguments in his Objections. First, he claims that
Defendants were acting under color of state law because the state officials quoted in the Post
Standard articles about Plaintiff’s prosecution “provided ‘significant encouragement, either overt or
covert’” to Defendants by giving them an “overwhelming amount of information” for Defendants’
articles. Pl.’s Obj. at 2. Second, he contends that Defendants were “willful participants in the
apparent joint activity with the state officials” because they did not publish any “true and positive
comments” spoken about Plaintiff at his trial and did not attempt “to verify the truth and accuracy of
those defamatory and false statements” about Plaintiff. Id. at 2-3. Third, Plaintiff argues that the
Defendants “were clothed with the authority of state law” because Defendant Post Standard (“the
Post Standard”) “was authorized by the state government to publish newspapers in the State of New
York.” Id. at 3.
Plaintiff’s first argument essentially reiterates the allegations in his Complaint – namely, that
state officials provided Defendants with information about Plaintiff that Plaintiff claims was
defamatory. See Pl.’s Obj. at 2. The Court therefore reviews only for clear error the portions of the
Report-Recommendation relevant to this objection. Farid, 554 F. Supp. 2d at 307. Here, the Court
finds no such error in the Magistrate Judge’s conclusion that Defendants’ publication of information
given to them by state officials does not establish a conspiracy between Defendants and state
The Court reviews de novo the allegations that Plaintiff raises in his Objections that
Defendants were willful participants in joint activity with state officials because Defendant Coin did
not publish “true and positive comments” about Plaintiff during his trial, and made no attempt to
verify the accuracy of state officials’ statements. Pl.’s Obj. at 2-3. Plaintiff seems to argue that
these factors evince a deliberate plan between Defendants and state officials because “negligence is
hardly an explanation because of the astonishing number of defamatory statements.” Id. at 2. Even
according this argument review de novo, the Court concludes that such an allegation is insufficient
to show any “agreement or meeting of the minds” between Defendants and state officials to violate
Plaintiff’s constitutional rights. Colon v. Town of West Hartford, No. 3:00CV168, 2001 WL
45464, at *7 (D. Conn. Jan. 5, 2001).
Finally, reviewing de novo Plaintiff’s objection that Defendants are clothed with the
authority of state law because the Post Standard is “authorized by the state government to publish
newspapers in the State of New York,” the Court finds that it has no merit. Pl.’s Obj. at 3. First, the
case to which Plaintiff cites in support of this argument is wholly inapposite because the defendant
in that case was a prison physician rather than a newspaper or journalist. See West v. Atkins, 487
U.S. 42, 49 (1988). Second, the Post Standard is not “authorized” to publish newspapers in the state
of New York; on the contrary, publishing newspapers articles is a “constitutionally protected right”
of journalists, and they may not be held liable under § 1983 for doing precisely that. Fitzpatrick v.
Wert, 432 F. Supp. 601, 603 (W.D.N.Y. 1977). Moreover, to find otherwise “would be to declare
all news outlets state actors and to justify section 1983 actions by criminal defendants whenever
there has been pretrial publicity of any sort or content.” Skinner v. Dwyer, No. 91-CV-238, 1992
WL 265995, at *2 (N.D.N.Y. Sept. 9, 1992) (quoting and adopting argument in defendant
newspaper’s memorandum of law at 5). For all of the foregoing reasons, the Court rejects
Plaintiff’s objections and adopts the findings in the Report-Recommendation.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation is APPROVED and ADOPTED in its
ENTIRETY; and it is further
ORDERED, that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED with prejudice for
failure to state a claim on which relief may be granted; and it is further
ORDERED, that no opportunity to amend the Complaint is provided to Plaintiff; and it is
ORDERED, that Plaintiff’s renewed Application to proceed in forma pauperis (Dkt. No.
13) is DENIED as moot; and it is further
ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order on
Plaintiff by regular and certified mail, along with a copy of the decision available only electronically
and cited herein.
IT IS SO ORDERED.
June 16, 2011
Albany, New York
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