Shenko v. Federal Bureau of Investigation et al

Filing 20

ORDERED, that the Report-Recommendation (Dkt. No. 6) is APPROVED and ADOPTED in its entirety; and it is further ORDERED, that Plaintiffs Amended Complaint (Dkt. No. 5) is DISMISSED with leave to amend claims against the FBI, Homeland Security, the To wn of New Hartford, and Officer Freiberger; and is DISMISSED without leave to amend claims against the New Hartford Police Department; and it is further ORDERED, that Plaintiffs Amendment (Dkt. No. 12) to claim and Second Amended Complaint (Dkt. No. 14) are STRICKEN from the docket as improper pleadings. Plaintiff is directed to file one amended complaint in accordance with the Report-Recommendation; and it is further ORDERED, that Plaintiffs Letter Brief (Dkt. No. 17) is DENIED as moot; and it is further ORDERED, that Plaintiffs Letter Request (Dkt. No. 19) for permission to resubmit an amended complaint is DENIED as moot. Signed by Senior Judge Lawrence E. Kahn on June 18, 2015.***A copy of this order was served upon the pro se plaintiff by regular US mail. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
LINDA J. SHENKO,
Plaintiff,
-against-

6:14-CV-1595 (LEK/TWD)

FEDERAL BUREAU OF
INVESTIGATION; HOMELAND
SECURITY; JOHN AND JANE DOES;
TOWN OF NEW HARTFORD; NEW
HARTFORD POLICE DEPARTMENT;
and OFFICER FREIBERGER,
Defendants.
___________________________________
ORDER
This matter comes before the Court following a Report-Recommendation filed on April 17,
2015, by the Honorable Thérèse Wiley Dancks, U.S. Magistrate Judge, pursuant to 28 U.S.C.
§ 636(b) and Local Rule 72.3. Dkt. No. 6 (“Report-Recommendation”). Pro se Plaintiff Linda J.
Shenko (“Plaintiff”) timely filed Objections. Dkt. No. 18 (“Objections”).
Within fourteen days after a party has been served with a copy of a magistrate judge’s reportrecommendation, the party “may serve and file specific written objections to the proposed findings
and recommendations.” FED. R. CIV. P. 72(b); L.R. 72.1(c). If a party objects to a reportrecommendation, “the Court subjects that portion of the report-recommendation to a de novo
review.” Williams v. Roberts, No. 11-CV-0029, 2012 WL 760777, at *3 (N.D.N.Y. Mar. 7, 2012)
(citing FED. R. CIV. P. 72(b)(2) and 28 U.S.C. § 636(b)(1)(C)); see also United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). If no objections are made, or if an objection is general,
conclusory, perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district

court should review that aspect of a report-recommendation for clear error. Barnes v. Prack, No.
11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F. Supp. 2d
301, 306-07 & n.2 (N.D.N.Y. 2008); see also Machicote v. Ercole, No. 06 Civ. 13320, 2011 WL
3809920, at *2 (S.D.N.Y. Aug. 25, 2011) (“[E]ven a pro se party’s objections to a Report and
Recommendation must be specific and clearly aimed at particular findings in the magistrate’s
proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior
argument.”). “A [district] judge . . . 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).
Plaintiff’s Objections either restate claims made in her Amended Complaint, see, e.g., Objs.
at 1-3, or seek to clarify or amend her earlier claims, see, e.g., id. at 6-9; see also Dkt. No. 5
(“Amended Complaint”).1 Accordingly, the Court has reviewed the Report-Recommendation for
clear error and has found none.
Plaintiff has also filed an Amendment to claim and a Second Amended Complaint. Dkt.
Nos. 12 (“Amendment”); 14 (“Second Amended Complaint”). Because Plaintiff’s Amendment and
Second Amended Complaint are improperly filed amended pleadings, they are stricken from the
docket. See FED. R. CIV. P. 15(a)(2). However, because the Court adopts the ReportRecommendation in its entirety, infra, Plaintiff will be afforded an opportunity to replead her claims
as provided in the Report-Recommendation. Any amended complaint submitted in response to this
Order must set forth a short and plain statement of the facts Plaintiff relies on in support of her

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The Report-Recommendation recommends allowing Plaintiff an opportunity to replead her
claims, with the exception of her claim against the New Hartford Police Department. Report-Rec. at
1. Plaintiff does not challenge Judge Dancks’s recommendation that her claims against the New
Hartford Police Department be dismissed with prejudice. See generally Objs.
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claims against the named defendant(s). See FED. R. CIV. P. 8(a). Plaintiff’s amended complaint,
which shall supersede and replace in its entirety the Amended Complaint and any other amended
pleadings, must be a complete pleading which sets forth all of the claims that Plaintiff wants the
Court to consider as a basis for awarding relief herein.2
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 6) is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED, that Plaintiff’s Amended Complaint (Dkt. No. 5) is DISMISSED with leave
to amend claims against the FBI, Homeland Security, the Town of New Hartford, and Officer
Freiberger; and is DISMISSED without leave to amend claims against the New Hartford Police
Department; and it is further
ORDERED, that Plaintiff’s Amendment (Dkt. No. 12) to claim and Second Amended
Complaint (Dkt. No. 14) are STRICKEN from the docket as improper pleadings. Plaintiff is
directed to file one amended complaint in accordance with the Report-Recommendation; and it is
further
ORDERED, that Plaintiff’s Letter Brief (Dkt. No. 17) is DENIED as moot; and it is further
ORDERED, that Plaintiff’s Letter Request (Dkt. No. 19) for permission to resubmit an
amended complaint is DENIED as moot; and it is further

2

Plaintiff also filed a Letter Brief requesting a cease and desist order and a Letter Request
for permission to amend her Second Amended Complaint. Dkt. Nos. 17 (“Letter Brief”); 19
(“Letter Request”). Because the Court dismisses all of Plaintiff’s claims in accordance with the
Report-Recommendation and strikes the Second Amended Complaint from the docket, and because
Plaintiff will have an opportunity to replead all but one of her claims, Plaintiff’s Letter Brief and
Letter Request are denied as moot.
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ORDERED, that the Clerk of the Court serve a copy of this Order on Plaintiff in accordance
with the Local Rules.
IT IS SO ORDERED.

DATED:

June 18, 2015
Albany, New York

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