Shenko v. Federal Bureau of Investigation et al
ORDERED, that the Report-Recommendation (Dkt. No. 40) is APPROVED and ADOPTED in its entirety; and it is further ORDERED, that Plaintiffs Second Amended Complaint (Dkt. No. 34) is DISMISSED in its entirety without leave to amend for failure to state a claim upon which relief may be granted; and it is further ORDERED, that the Court declines to exercise supplemental jurisdiction over Plaintiffs state law claims without prejudice to the re-filing of the claims in state court; and it is further ORD ERED, that Plaintiffs Letter Request (Dkt. No. 35) seeking to amend the Second Amended Complaint is DENIED. Signed by Senior Judge Lawrence E. Kahn on April 18, 2016.***A copy of this order & subsequent judgment was served upon the pro se party by Certified US Mail & Regular US Mail. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
LINDA J. SHENKO,
FEDERAL BUREAU OF
INVESTIGATION, et al.,
This matter comes before the Court following a Report-Recommendation filed on February
29, 2016, 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. 40 (“Report-Recommendation”). On March 11, 2016, the
Court received a Letter Motion from Plaintiff Linda Shenko (“Plaintiff”) requesting an extension of
time to file objections. Dkt. No. 42 (“Letter Motion”). In the interest of justice, the Court granted
Plaintiff an extension of time in which to file objections to the Report-Recommendation. Dkt. No.
43 (“Text Order”). Plaintiff timely filed Objections on April 4, 2016. Dkt. No. 44 (“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 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 need review that aspect of a report-recommendation only for clear
error. Chylinski v. Bank of Am., N.A., 434 F. App’x 47, 48 (2d Cir. 2011); 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 appears to object to the Court’s denial of her request for oral argument. Objs. at 1.
In her Letter Motion, in addition to requesting an extension of time to file objections, Plaintiff also
requested oral argument in this matter. Let. Mot. The Court denied Plaintiff’s request for oral
argument on March 14, 2016. Text Order. Local Rule 72.1(b), which governs the filing of
objections to a magistrate judge’s determination, provides that “[u]nless the Court directs otherwise,
it will decide all appeals on submission of the papers without oral argument.” N.D.N.Y. L.R.
72.1(b).1 Therefore, the Court’s denial of Plaintiff’s request for oral argument was proper.
Plaintiff alleges that the FBI has falsified the record in this case and, to the extent that Court
accepts the FBI’s representations, that the Court is believing “fiction.” Objs. at 1. Plaintiff does not
make objections to specific findings within the Report-Recommendation, but rather generally
alleges that she “needs [her] day in court” and that Defendants have not been telling the truth. See,
e.g., id. at 17. She offers no evidence or factual allegations in support of these assertions. Upon
review of the Report-Recommendation, the Court finds that Judge Dancks properly afforded
Plaintiff’s allegations the liberality given to pro se plaintiffs and construed Plaintiff’s claims to raise
Local Rule 72.1(c) provides that when reviewing a party’s objections to a magistrate
judge’s report-recommendation, the Court will proceed with the submissions in accordance with
Local Rule 72.1(b). N.D.N.Y. L.R. 72.1(c).
the strongest arguments they suggest. Plaintiff was afforded several extensions to file a Second
Amended Complaint, and Judge Dancks additionally reviewed the “few pages” of Plaintiff’s Second
Amended Complaint that were filed before the Second Amended Complaint. See Rep.-Rec. at 3;
Dkt. Nos. 31 (“Partial Second Amended Complaint”); 34 (“Second Amended Complaint”). The
Court finds that Judge Dancks properly recommended dismissal of Plaintiff’s claims against the
United States of America, Department of Justice, Federal Bureau of Investigation, and the
Department of Homeland Security on the basis of sovereign immunity. Rep.-Rec. at 9-10. Judge
Dancks properly recommended dismissal of Plaintiff’s claims against individual officers based on
Plaintiff’s failure to allege that these individuals were personally involved in the deprivation of her
constitutional rights. Id. at 10, 13, 17. Plaintiff’s claims against the town of New Hartford were
recommended for dismissal based on Plaintiff’s failure to allege that the claimed constitutional
violation resulted from a municipal custom or policy, consistent with Monell v. Department of
Social Services, 436 U.S. 658, 690-91 (1978). Id. at 12. Additionally, Judge Dancks recommended
the dismissal of Plaintiff’s conspiracy claim because Plaintiff did not show that any private parties
conspired with a state actor and found that Plaintiff could not state a claim under 18 U.S.C. § 241
because this statute does not allow for a private right of action. Id. at 19-20. Judge Dancks
recommended that the Court decline to exercise supplemental jurisdiction over Plaintiff’s remaining
state law claims because all Plaintiff’s federal claims were recommended for dismissal. Id. at 20.
The Court has reviewed the Report-Recommendation for clear error and has found none.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 40) is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED, that Plaintiff’s Second Amended Complaint (Dkt. No. 34) is DISMISSED in
its entirety without leave to amend for failure to state a claim upon which relief may be granted;
and it is further
ORDERED, that the Court declines to exercise supplemental jurisdiction over Plaintiff’s
state law claims without prejudice to the re-filing of the claims in state court; and it is further
ORDERED, that Plaintiff’s Letter Request (Dkt. No. 35) seeking to amend the Second
Amended Complaint is DENIED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
April 18, 2016
Albany, New York
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