Clare-Lunny v. State of NY United Court System et al

Filing 8

MEMORANDUM-DECISION and ORDER - That Magistrate Judge Therese Wiley Dancks' May 8, 2014 5 Order and Report-Recommendation is ADOPTED in its entirety. That Clare-Lunny's complaint (Dkt. No. 1) is DISMISSED WITH PREJUDICE with respect t o any claims against Judge Anthony J. Garramone and the New York Unified Court System. That Clare-Lunny's complaint (Dkt. No. 1) is DISMISSED WITHOUT PREJUDICE with respect to any claims against Sarah Riente, Brittney Johannssen, and Denise Bro wn. That Clare-Lunny may, in accordance with the requirements of, among other things, Fed. R. Civ. P. 8(a) and N.D.N.Y. L.R. 7.1(a)(r0, file an amended complaint within thirty (30) days of the dateof this Memorandum-Decision and Order. That if Clar e-Lunny elects to file an amended complaint, defendants shall have fourteen (14) days to file an appropriate response. That if Clare-Lunny does not file an amended complaint within thirty (30) days of this Memorandum-Decision and Order, the Clerk is directed to close this case without further order of the court. Signed by Chief Judge Gary L. Sharpe on 8/4/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DEMETRIA CLARE-LUNNY,
Plaintiff,

6:14-cv-455
(GLS/TWD)

v.
STATE OF NY UNITED COURT
SYSTEM et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Demetria Clare-Lunny
Pro Se
1309 Elm Street
Private #1 Cottage
Utica, NY 13501
Gary L. Sharpe
Chief Judge

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Demetria Clare-Lunny commenced this action against
defendants State of NY United Court System, 1 Honorable Anthony J.
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The court presumes that Clare-Lunny refers to the New York State Unified Court
System, and the court will refer to it as such. It is unclear, however, whether Clare-Lunny even
intended to name the New York State Unified Court System as a defendant. (Compl., Dkt. No.
1 at 1-2; Dkt. No. 5 at 6.) Nevertheless, in an abundance of caution, the court construes Clare-

Garramone, Sarah Riente, Brittney Johannssen, and Denise Brown,
pursuant to 42 U.S.C. § 1983, alleging violations of her civil rights and
defamation of character. (See generally Compl., Dkt. No. 1.) Upon
commencement of this action, Clare-Lunny also filed a motion for leave to
proceed in forma pauperis (IFP). (Dkt. No. 2.)
In an Order and Report-Recommendation (R&R) issued on May 8,
2014, Magistrate Judge Therèse Wiley Dancks granted Clare-Lunny’s IFP
application. (Dkt. No. 5 at 3, 8.) Additionally, upon an initial review of
Clare-Lunny’s complaint pursuant to 28 U.S.C. § 1915(e), Judge Dancks
recommended that the complaint be dismissed with prejudice as to Judge
Garramone and the Unified Court System, and be dismissed without
prejudice as to Brown, Johannssen, and Riente. (Id. at 8.) Pending are
Clare-Lunny’s objections to the R&R. (Dkt. No. 6.) For the reasons that
follow, the R&R is adopted in its entirety.
II. Standard of Review
Before entering final judgment, this court reviews report and
recommendation orders in cases it has referred to a magistrate judge. If a
party properly objects to a specific element of the magistrate judge’s

Lunny’s complaint as asserting a claim against the New York Unified Court System.

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findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No.
Civ. 904CV484GLS, 2006 WL 149049, at *3, *5 (N.D.N.Y. Jan. 18, 2006).
In those cases where no party has filed an objection, only vague or general
objections are made, or a party resubmits the same papers and arguments
already considered by the magistrate judge, this court reviews the findings
and recommendations of the magistrate judge for clear error. See id. at *45.
IV. Discussion
In her R&R, Judge Dancks first discussed Clare-Lunny’s claims
against Judge Garramone. (Dkt. No. 5 at 5-6.) Clare-Lunny claimed that,
as the result of false allegations by one of her daughters, Judge
Garramone found Clare-Lunny to be an unfit mother. (Compl. at 2.)
Concluding that he was entitled to absolute judicial immunity, and that
better pleading could not cure the defective allegations, Judge Dancks
recommended that Clare-Lunny’s claims against Judge Garramone be
dismissed without leave to amend. (Dkt. No. 5 at 5-6.) Next, Judge
Dancks addressed Clare-Lunny’s claims against the New York Unified
Court System, and concluded that the Eleventh Amendment barred these
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claims. (Id. at 6-7.) Again, because better pleading would not provide a
remedy, Judge Dancks recommended that these claims also be dismissed
without leave to amend. (Id.)
Judge Dancks then discussed Clare-Lunny’s claims against Brown, a
social worker, and Johannssen, a family case worker. (Id. at 7.) Judge
Dancks noted that the complaint does not include any specific allegations
against either Johannssen or Brown, and in the 168 pages attached to the
complaint, only one references Brown. (Dkt. No. 1, Attach. 2 at 71.) Thus,
Judge Dancks recommended that these claims be dismissed, without
prejudice, for lack of personal involvement. (Dkt. No. 5 at 7.) Finally,
Judge Dancks reviewed Clare-Lunny’s claims against Riente, an individual
who appears to have conducted interviews in support of a petition filed by
the Herkimer County Department of Social Services, alleging that ClareLunny’s children were neglected or abused. (Dkt. No. 1, Attach. 2 at 85-98;
Dkt. No. 5 at 7-8.) Judge Dancks noted that Riente could be entitled to
absolute immunity if her actions were “‘intimately connected’” with the
judicial process, but, in any event, as a child protective service worker,
Riente would likely be entitled to qualified immunity for her conduct during
the course of abuse investigations. (Dkt. No. 5 at 8 (quoting Wilkinson ex
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rel. Wilkinson v. Russell, 182 F.3d 89, 98 (2d Cir. 1999).) Thus, Judge
Dancks recommended that Clare-Lunny’s claims against Riente also be
dismissed with leave to amend. (Dkt. No. 5 at 7-8.)
In her objections, Clare-Lunny utterly fails to identify errors with any
specific portion of the R&R. (See generally Dkt. No. 6.) Instead, ClareLunny generally contends that this matter “has been obviously painful” for
herself and her children, and in light of the information she provided,
coupled with the “168 pages filed electronically,” she “hope[s that] we could
come to an understanding.” 2 (Dkt. No. 6 at 1.) These “objections” are not
sufficient to trigger de novo review. Accordingly, consistent with the
standards set forth in Almonte, 2006 WL 149049, at *3-5, the court has
carefully reviewed the record, found no clear error in the R&R, and adopts
the R&R in its entirety.
Further, with respect to Clare-Lunny’s claims against Brown,
Johannssen, and Riente, which are dismissed without prejudice, an
amended complaint, if any, must be filed within thirty (30) days of the date

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Additionally, for the first time, Clare-Lunny appears to assert a new claim under the
Americans with Disabilities Act. (Dkt. No. 6 at 1.) However, “[i]t is well settled that a litigant
may not raise new claims not contained in the complaint . . . in objections filed in response to a
Magistrate Judge’s report and recommendation.” Bermudez v. Waugh, No. 9:11-CV-0947,
2013 WL 654401, at *6 (N.D.N.Y. Feb. 21, 2013). Therefore, the court ignores that reference.

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of this Memorandum-Decision and Order, and strictly comply with the
requirements of, among other things, N.D.N.Y. L.R. 7.1(a)(4), Fed. R. Civ.
P. 11(b), and Fed. R. Civ. P. 8. The amended complaint should set forth
more specific allegations, and the factual basis for those claims. If ClareLunny elects to file an amended complaint, defendants shall have fourteen
(14) days to file an appropriate response.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Therèse Wiley Dancks’ May 8,
2014 Order and Report-Recommendation (Dkt. No. 5) is ADOPTED in its
entirety; and it is further
ORDERED that Clare-Lunny’s complaint (Dkt. No. 1) is DISMISSED
WITH PREJUDICE with respect to any claims against Judge Anthony J.
Garramone and the New York Unified Court System; and it is further
ORDERED that Clare-Lunny’s complaint (Dkt. No. 1) is DISMISSED
WITHOUT PREJUDICE with respect to any claims against Sarah Riente,
Brittney Johannssen, and Denise Brown; and it is further
ORDERED that Clare-Lunny may, in accordance with the
requirements of, among other things, Fed. R. Civ. P. 8(a) and N.D.N.Y.
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L.R. 7.1(a)(4), file an amended complaint within thirty (30) days of the date
of this Memorandum-Decision and Order; and it is further
ORDERED that if Clare-Lunny elects to file an amended complaint,
defendants shall have fourteen (14) days to file an appropriate response;
and it is further
ORDERED that if Clare-Lunny does not file an amended complaint
within thirty (30) days of this Memorandum-Decision and Order, the Clerk is
directed to close this case without further order of the court; and it is further

ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
August 4, 2014
Albany, New York

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