Salaam v. Syracuse Model Neighborhood Facility et al

Filing 7

ORDER. The Court hereby ORDERS that Magistrate Judge Baxter's September 6, 2011 4 Order and Report-Recommendation is ACCEPTED in its entirety for the reasons stated therein; The Court further ORDERS that plaintiff's 2 Motion for Leave t o Proceed in forma pauperis is GRANTED for fililng purposes only; The Court further ORDERS that Plaintiff's original complaint is DISMISSED; The Court further ORDERS that Plaintiff's amended complaint is referred to Magistrate Judge Baxter for review. Signed by U.S. District Judge Mae A. D'Agostino on 10/5/11. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
NAJAH SALAAM,
Plaintiff,
vs.

5:11-cv-948
(MAD/ATB)

SYRACUSE MODEL NEIGHBORHOOD
FACILITY; JESSE DOWDELL, C.E.O. of
Syracuse Model Neighborhood Facility; MARY
ANNE CICCARELLI, Director of Human
Resources; and LINDA CAMPBELL, President
of Syracuse Model Neighborhood Facility Board,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

NAJAH SALAAM
115 Coolidge Avenue
Syracuse, New York 13204
Plaintiff pro se

Mae A. D'Agostino, U.S. District Judge:
ORDER
On August 11, 2011, the Court received for filing a complaint in which Plaintiff pro se
appears to challenge Defendants' termination of her employment. See Dkt. No. 1. In an Order
and Report-Recommendation dated September 6, 2011, Magistrate Judge Baxter recommended
that the Court (1) grant Plaintiff's motion to proceed in forma pauperis for filing purposes only;
(2) mail a copy of the Court's form civil complaint to Plaintiff; (3) grant Plaintiff thirty days from
the date of any order adopting his Order and Report-Recommendation to file a federal complaint
that complies with the Federal Rules of Civil Procedure; and (4) dismiss the complaint in its
entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii) if Plaintiff fails to file an amended

complaint within thirty days of the date of any order adopting his Order and ReportRecommendation. See Dkt. No. 4 at 7. Specifically, in his Order and Report-Recommendation,
Magistrate Judge Baxter found that Plaintiff's complaint does not comply with Rule 8(a)(2) of the
Federal Rules of Civil Procedure and, in fact, does not even resemble a federal complaint. See id.
at 6. Further, Magistrate Judge Baxter noted that the filing does not specifically indicate who
Plaintiff intends to bring suit against and appears to allege claims on behalf of another individual
(Ms. Knisha B. Lawry), which she cannot do while proceeding pro se. See id. As such,
Magistrate Judge Baxter recommended that the Court dismiss the complaint, but grant Plaintiff
leave to amend.1 Neither party objected to Magistrate Judge Baxter's Order and ReportRecommendation.
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes 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)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After the appropriate review, "the court 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).

On October 3, 2011, the Court received for filing an amended complaint. Although the
Court takes no position as to the sufficiency of this pleading, the Court notes that Linda
Campbell, President of Syracuse Model Neighborhood Facility Board, is no longer listed as a
Defendant. See Dkt. No. 6 at 2. Further, in the amended complaint, Plaintiff now seeks the
appointment of pro bono counsel. See id. at 7.
1

2

A litigant's failure to file objections to a magistrate judge's report and recommendation,
even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to
object to any purported error or omission in a magistrate judge's report waives further judicial
review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice
is sufficient if it informs the litigant that the failure to file a timely objection will result in the
waiver of further judicial review and cites the pertinent statutory and civil rules authority. See
Frank v. Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs.,
892 F.2d 15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the report explicitly states
that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
Having reviewed Magistrate Judge Baxter's September 6, 2011 Order and ReportRecommendation and the applicable law, the Court concludes that Magistrate Judge Baxter
correctly recommended that the Court should dismiss Plaintiff's complaint but grant her leave to
amend.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Baxter's September 6, 2011 Order and ReportRecommendation is ACCEPTED in its entirety for the reasons stated therein; and the Court
further
ORDERS that Plaintiff's in forma pauperis application is GRANTED for filing purposes
only; and the Court further
ORDERS that Plaintiff's original complaint is DISMISSED; and the Court further
3

ORDERS that Plaintiff's amended complaint is referred to Magistrate Judge Baxter for
review; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in
accordance with the Local Rules.

IT IS SO ORDERED.
Dated: October 5, 2011
Albany, New York

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