McDermott v. Cody et al

Filing 6

DECISION & ORDER: It is ordered that the # 5 Report and Recommendation of Magistrate Judge David E. Peebles is ACCEPTED and ADOPTED in its entirety, therefore the # 1 Complaint is hereby DISMISSED without prejudice. The Clerk will draft judgment and close this case. Signed by Judge Glenn T. Suddaby on 11/27/2012. {Copy mailed to pro se plaintiff by regular mail} (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
BRIAN E. McDERMOTT,
Plaintiff,
6:11-CV-1057
(GTS/DEP)

v.
JAMES CODY, Syracuse VAMC Director;
MARK ANTONELLI, Syracuse VAMC HR
Director; and LUCINDA WALTS,
Syracuse VAMC Nurse Recruiter;
Defendants.
___________________________________________
APPEARANCES:

OF COUNSEL:

BRIAN E. McDERMOTT
Plaintiff, Pro Se
P.O. Box 1944
Utica, New York 13501
HON. GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court in this civil rights action filed by Brian E. McDermott
(“Plaintiff”) in September 2011 alleging that Defendants violated the Veterans Preference Act, 5
U.S.C. § 2108, by denying him a job interview despite being a veteran of the Vietnam War, is
United States Magistrate Judge David E. Peebles’ Report-Recommendation dated December 6,
2011, recommending that Plaintiff’s Complaint be dismissed without prejudice pursuant to Fed. R.
Civ. P.41(b) for failure to pay the Court’s filing fee or to submit a complete motion to proceed in
forma pauperis. (Dkt. No. 5.) Plaintiff has not filed an Objection to the Report-Recommendation,
and the deadline by which to do so has expired. (See generally Docket Sheet.)
Based upon a clear-error review of the filed papers this action, Magistrate Judge Peebles’
Report-Recommendation is accepted and adopted in its entirety for the reasons stated therein. (Dkt.

No. 5.) The Court would add only three points. First, Magistrate Judge Peeble’s thorough and
correct Report-Recommendation would survive even a de novo review. Second, the incomplete
nature of Plaintiff’s response to Question 2.b. his September 5, 2011, motion to proceed in forma
pauperis in this action is conspicuous, given that in a September 5, 2011, motion to proceed in
forma pauperis in another case in this District, he stated that his last date of employment was
August 23, 2011, his salary being $45,069 per year or $726 per weekly pay period. McDermott v.
Cicconi, 11-CV-1059, Plf.’s Motion to Proceed In Forma Pauperis, at ¶ 2.b (N.D.N.Y. filed Sept.
7, 2011). Third, while the Court does not base its decision to dismiss on the pleading sufficiency of
Plaintiff’s Complaint, the Court notes that (in addition to the fact that the Veterans Preference Act
does not provide for a private right of action or a right that is enforceable under 42 U.S.C. § 1983)
Plaintiff has alleged that, in his employment application to the Syracuse VAMC, he stated that,
“[d]uring the past seven years . . . [he had] been convicted, imprisoned, on probation or parole, or
forfeited collateral, or . . . [was currently] under charges for any offense against the law [other than
a felony or any firearms or explosives offense],” plausibly suggesting that that fact may have been
the cause of his failure to obtain a job interview. (Dkt. No. 1, at 6.)
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 5) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED without prejudice.
The Clerk’s Office is directed to close this action.
Dated: January 27, 2012
Syracuse, New York

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