Idlisan v. SUNY Upstate Medical University et al

Filing 4

ORDER adopting 3 Report-Recommendations and Order. ORDERED that Magistrate Judge Dancks' Report-Recommendation and Order is ADOPTED forthe reasons stated therein. It is further ORDERED that in the event that plaintiff is authorized to file a n amended complaint, plaintiff mayfile an amended complaint within THIRTY (30) DAYS of the date of this Order in compliance with the Federal Rules of Civil Procedure and the Local Rules for the United States District Court for the Northern District of New York. Signed by U.S. District Judge Mae A. D'Agostino on 2/7/13. (Attachments: # 1 Report-Recommendation and Order) (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
BERNARD B. IDLISAN,
Plaintiff,
vs.

5:12-CV-1790
(MAD/TWD)

SUNY UPSTATE MEDICAL UNIVERSITY,
HEATHER BALDWIN, and LINDSAY
PICCOTTI,
Defendants.
____________________________________________

APPEARANCES:

OF COUNSEL:

BERNARD B. IDLISAN
1402 Jefferson Avenue, 1st Floor
Brooklyn, New York 11237
Plaintiff pro se
Mae A. D'Agostino, U.S. District Judge:
ORDER
On December 5, 2012, the Court received for filing a complaint in which Plaintiff pro se
alleges that he was discriminated against in violation of Title I of the American with Disabilities
Act of 1990, 42 U.S.C. §§ 12111 - 12117 (“ADA”) and Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e, et. seq. (“Title VII”). Plaintiff also asserts claims for attempted bribery. See
Dkt. No. 1. Magistrate Judge Dancks issued a Report- Recommendation (Dkt. No. 3)
recommending that the Court grant Plaintiff's motion to proceed in forma pauperis. Magistrate
Judge Dancks also recommended dismissal of certain claims without leave to amend on Eleventh

Amendment grounds, and dismissal of other claims with leave to amend.1 Neither party objected
to Magistrate Judge Dancks’ Order and Report-Recommendation.
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, 2011 WL 933846, *1 (N.D.N.Y. 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).
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).
1

The Clerk is directed to append Judge Danck's Report-Recommendation to this decision, and familiarity is
presumed. (Dkt. No. 3).
2

After careful review of all of the papers herein, including the Magistrate Judge’s ReportRecommendation, and no objections submitted thereto, it is
ORDERED that:
1.

Magistrate Judge Dancks' Report-Recommendation and Order is ADOPTED for

the reasons stated therein.
2.

In the event that plaintiff is authorized to file an amended complaint, plaintiff may

file an amended complaint within THIRTY (30) DAYS of the date of this Order in compliance
with the Federal Rules of Civil Procedure and the Local Rules for the United States District Court
for the Northern District of New York.
3.

The Clerk of the Court shall serve a copy of this Order and Magistrate Judge

Dancks’ Report-Recommendation and Order on all parties in compliance with the Local Rules.
IT IS SO ORDERED.
Dated: February 7, 2013
Albany, New York

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