Netti v. Ayers et al
Filing
13
DECISION AND ORDER accepting and adopting # 6 Magistrate Judge Baxter's Report and Recommendation in its entirety. Plaintiff's Complaint is sua sponte dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii) for failure to state a claim upon which relief can be granted, except for Plaintiff's claims against Defendant State of New York under the Americans with Disabilities Act (ADA), which shall be dismissed with prejudice without further notice of the Court unl ess, within THIRTY (30) DAYS of the date of this Decision and Order, Plaintiff files an Amended Complaint correcting the pleading defects in those ADA claims in accordance with the instructions in the Report-Recommendation. Plaintiff's Amended C omplaint may not assert any of the aforementioned claims that are hereby being dismissed with prejudice (i.e., any claims other than her claims against Defendant State of New York under the ADA); and should Plaintiff file an Amended Complaint within the referenced thirty (30) day time period, it shall be referred to Magistrate Judge Baxter for review. Signed by Chief Judge Glenn T. Suddaby on 2/9/18. (lmw) (Copy served upon Pro Se Plaintiff via regular mail)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
GRACE ANN NETTI,
Plaintiff,
5:17-CV-0976
(GTS/ATB)
v.
CHRISTOPHER AYERS; JOHN IACONA;
TIM FURLONG; CHRISTINA LONGO;
STATE OF NEW YORK; STATE FARM
MUTUAL AUTOMOTIVE INSURANCE
COMPANY; ROGER BELL; TOM FERLENDA;
3RPM, INC. d/b/a Harry’s Tire; CHRISTOPHER
RIESTER; MIKE AUGUSTIN; JOHN DOES 1-5;
CAYUGA COUNTY; CITY OF AUBURN,
NEW YORK; and MAMI,
Defendants.
__________________________________________
APPEARANCES:
GRACE ANN NETTI
Plaintiff, Pro Se
P.O. Box 724
Skaneateles, New York 13152
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by Grace Ann Netti
(“Plaintiff”) against the above-captioned individual, municipal, state and corporate defendants
(“Defendants”), is United States Magistrate Judge Andrew T. Baxter’s Report-Recommendation
recommending that Plaintiff’s Complaint be sua sponte dismissed with prejudice pursuant to 28
U.S.C. § 1915(e)(2)(B)(i)-(ii) for failure to state a claim upon which relief can be granted, except
for Plaintiff’s claims against Defendant State of New York under the Americans with Disabilities
Act, which Plaintiff should be permitted amend before dismissal. (Dkt. No. 6.)
Plaintiff has filed an Objection to the Report-Recommendation. (Dkt. Nos. 11, 12.)
However, even when construed with the utmost of special solicitude, Plaintiff’s Objection fails
to assert a specific challenge to the Report-Recommendation. (Id.) As a result, the Court need
review the Report-Recommendation for only clear error.1
Based upon a careful review of this matter, the Court can find no clear error in the
Report-Recommendation: Magistrate Judge Baxter employed the proper standards, accurately
recited the facts, and reasonably applied the law to those facts. As a result, the Court accepts and
adopts the Report-Recommendation for the reasons stated therein. (Dkt. No. 6.)
ACCORDINGLY, it is
ORDERED that Magistrate Judge Baxter’s Report-Recommendation (Dkt. No. 6) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is sua sponte DISMISSED with
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii) for failure to state a claim upon which
relief can be granted, EXCEPT for Plaintiff’s claims against Defendant State of New York
under the Americans with Disabilities Act (“ADA”), which shall be DISMISSED with
prejudice without further notice of the Court UNLESS, within THIRTY (30) DAYS of the date
of this Decision and Order, Plaintiff files an Amended Complaint correcting the pleading defects
in those ADA claims in accordance with the instructions in the Report-Recommendation; and it
is further
1
When, as here, no objection is made to a report-recommendation, the Court
subjects that report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b),
Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review, “the
court need only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.” Id.: see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at
*1. (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a
magistrate judge’s] report to which no specific objection is made, so long as those sections are
not facially erroneous.”) (internal quotation marks and citations omitted).
2
ORDERED that Plaintiff’s Amended Complaint may not assert any of the
aforementioned claims that are hereby being dismissed with prejudice (i.e., any claims other than
her claims against Defendant State of New York under the ADA); and it is further
ORDERED that, should Plaintiff file an Amended Complaint within the referenced
thirty (30) day time period, it shall be referred to Magistrate Judge Baxter for review.
Dated: February 9, 2018
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
Chief United States District Judge
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