Welch v. Fitzgerald et al

Filing 10

MEMORANDUM-DECISION AND ORDER adopting Report and Recommendations re 8 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Baxter's May 16, 2018 Order and Report-Recommendation is ADOPTED in its entirety; and the Cour t further ORDERS that Plaintiff's complaint is DISMISSED WITH PREJUDICE as against Defendants Riggi and Colon pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); and the Court further ORDERS that Plaintiff's complaint is DISMISSED WIT HOUT PREJUDICE as against Defendants Fitzgerald, Hurley, Hochmuth, and County of Schenectady pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim; and the Court further ORDERS that Plaintiff is granted SIXTY (60) DAYS from the date of this Memorandum-Decision and Order to submit a proposed amended complaint for review; and the Court further ORDERS that this matter is referred to Magistrate Judge Baxter for review of the amended complaint; and the Court further ORDERS t hat if Plaintiff fails to file an amended complaint within sixty (60) days of the date of this Memorandum-Decision and Order, the Clerk of the Court shall enter judgment in Defendants' favor without further order of this Court and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 10/4/2018. (Copy served via regular mail)(ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
AARON WELCH, SR.
Plaintiff,
vs.

5:18-cv-00461
(MAD/ATB)

SUSAN FITZGERALD, individually, and in her
capacity as a social worker for the Schenectady
County Department of Social Services;
SUSANA HURLEY, individually, and in her
capacity as a social worker for the Schenectady
County Department of Social Services;
AMY HOCHMUTH, individually, and in her
capacity as a social worker for the Schenectady
County Department of Social Services;
DENISE RIGGI, individually, and in her capacity as
Chief Clerk of the Schenectady County Family Court;
LAWRENCIA COLON, individually, and in her
capacity as the deputy Clerk of the Schenectady
County Family Court; COUNTY OF
SCHENECTADY, New York,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

AARON WELCH, SR.
14-B-0149
Great Meadow Correctional Facility
Box 51
Comstock, New York 12821
Plaintiff Pro Se
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff commenced this action pro se on April 16, 2018 alleging civil rights violations
and requesting to proceed in forma pauperis ("IFP"). See Dkt. Nos. 1, 5. Plaintiff claims that

Defendants violated his due process and equal protection rights by denying him visitation with his
children while he is incarcerated, refusing to provide him with the addresses of his children, and
failing to investigate his concerns about his children being abused. See Dkt. No. 1 at ¶¶ 25-31.
On May 16, 2018, Magistrate Judge Andrew T. Baxter issued an Order and ReportRecommendation granting Plaintiff's IFP application, and recommending that the Complaint be
dismissed and Plaintiff be granted sixty days to amend his Complaint. See Dkt. No. 8 at 21-22.
Plaintiff filed his Objections to Order and Report Recommendation on May 25, 2018. See
Dkt. No. 9. Plaintiff appears to challenge two statements from the Order and ReportRecommendation: first, that any amended complaint "may not incorporate facts or claims from
the original complaint," and second, that the Order and Report-Recommendation "reached no
conclusions regarding the applicability for equitable tolling." See id. at 1.
II. DISCUSSION
A.

Standard of Review
When a plaintiff seeks to proceed IFP, "the court shall dismiss the case at any time if the

court determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim
on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief." 28 U.S.C. § 1915(e)(2)(B). In making this determination, "the court has the
duty to show liberality towards pro se litigants," however, "there is a responsibility on the court to
determine that a claim has some arguable basis in law before permitting a plaintiff to proceed
with an action in forma pauperis." Moreman v. Douglas, 848 F. Supp. 332, 333-34 (N.D.N.Y.
1994) (internal citations omitted).
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
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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).
Plaintiff's "objections" are so general that they do not actually object to the Order and
Report-Recommendation. As such, the Court will review the Order and Report-Recommendation
for clear error. See Scipio v. Keane, No. 95-CV-2732, 1997 WL 375601, *1 (S.D.N.Y. July 7,
1997) (when objections fail to address analysis directly, court reviews report-recommendation for
clear error); see also Brown v. Peters, No. 95-CV-1641, 1997 WL 599355, *2 (N.D.N.Y. Sept.
22, 1997), aff'd, 175 F.3d 1007 (2d Cir. 1999) (collecting cases about general objections).
B.

Incorporating Facts in an Amended Complaint
Plaintiff's request to "incorporate facts from the original complaint in order to support a

new claim in the forthcoming amended complaint" is not an objection to the Order and ReportRecommendation. See Dkt. No. 9 at 1. The Northern District's Local Rule 7.1(a)(4) prohibits a
party from incorporating "any portion of its prior pleading into the proposed amended pleading by
reference" because an "amended complaint must be a complete pleading that supercedes the
original." See Dkt. No. 8 at 21; N.D.N.Y.L.R. 7.1(a)(4). This requirement does not prevent a
plaintiff from relying on the facts cited in the original complaint in his amended complaint.
Rather, it only requires that the plaintiff treat the new complaint as a standalone document.

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Therefore, Plaintiff may continue to rely on facts from his original complaint, as long as he
restates those facts in the amended complaint.
C.

Equitable Tolling
Plaintiff's argument that the Order and Report-Recommendation "reaches no conclusions

regarding the applicability for equitable tolling" is likewise not an objection. See Dkt. No. 9 at 1.
Magistrate Judge Baxter did not address the doctrine of equitable tolling because he did not
recommend that any claims be dismissed as untimely. Instead, he found that even if all of
Plaintiff's claims are timely, they should still be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)
for judicial immunity or failure to state a claim.
D.

Analysis of the Order and Report-Recommendation
The Court finds no clear error in Magistrate Judge Baxter's determinations. First,

Defendants Riggi and Colon have judicial immunity as clerks of the Schenectady County Family
Court, so the claims against them should be dismissed with prejudice. See Dkt. No. 8 at 16-18.
Second, Plaintiff has not adequately pleaded that Defendants Fitzgerald, Hurley, and Hochmuth
deprived him of a due process right regarding his children because (i) Plaintiff's visitation rights
were terminated by the May 2013 court order, not by any action by Defendants Fitzgerald,
Hurley, and Hochmuth; (ii) Plaintiff does not have a protected property or liberty interest in the
initiation of a investigation into allegations of abuse of his children; and (iii) Defendants
Fitzgerald, Hurley and Hochmuth's conduct was not so outrageous as to rise to the level of a
substantive due process claim. See id. at 8-12. Third, the Court agrees with Magistrate Judge
Baxter that Plaintiff has alleged only speculative conclusions without sufficient basis in fact to
support his claim that his equal protection rights were violated by a failure to provide sufficient
services. See id. at 14. Finally, the Order and Report-Recommendation correctly rejects
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municipal liability against the County of Schenectady because Plaintiff offers no support for his
conclusion that unresponsive and unhelpful behavior in the municipality is a "common practice"
that is "widely used." See id. at 15-16.
III. CONCLUSION
Having carefully reviewed the May 16, 2018 Order and Report-Recommendation and the
May 25, 2018 Objections, the Court finds that Magistrate Judge Baxter correctly determined that
the claims against Defendants Riggi and Colon should be dismissed with prejudice and that the
claims against Defendants Fitzgerald, Hurley, Hochmuth, and County of Schenectady should be
dismissed without prejudice for failure to state a claim. Accordingly, the Court hereby
ORDERS that Magistrate Judge Baxter's May 16, 2018 Order and ReportRecommendation is ADOPTED in its entirety; and the Court further
ORDERS that Plaintiff's complaint is DISMISSED WITH PREJUDICE as against
Defendants Riggi and Colon pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); and the Court further
ORDERS that Plaintiff's complaint is DISMISSED WITHOUT PREJUDICE as against
Defendants Fitzgerald, Hurley, Hochmuth, and County of Schenectady pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim; and the Court further
ORDERS that Plaintiff is granted SIXTY (60) DAYS from the date of this
Memorandum-Decision and Order to submit a proposed amended complaint for review; and the
Court further
ORDERS that this matter is referred to Magistrate Judge Baxter for review of the
amended complaint; and the Court further
ORDERS that if Plaintiff fails to file an amended complaint within sixty (60) days of the
date of this Memorandum-Decision and Order, the Clerk of the Court shall enter judgment in
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Defendants' favor without further order of this Court and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: October 4, 2018
Albany, New York

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