Altimonte v. Leboz et al
MEMORANDUM-DECISION AND ORDER: It is hereby ORDERED that Magistrate Judge Dancks' Report-Recommendation (Dkt. No. 7 ) is ADOPTED in all respects. It is further ORDERED that Plaintiff's complaint is DISMISSED, with leave to amend within t hirty days from the date of this Order. It is further ORDERED that, if Plaintiff fails to file an amended complaint within 30 days from the date of this Order or to request an extension of time to do so, the Clerk is directed to enter judgment without further order of this Court. Signed by Judge Brenda K. Sannes on 9/7/2021. [Copy served upon pro se plaintiff via regular mail.] (nmk)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JOHN JAMES ALTIMONTE,
DR. RONALD M. LEBOZ, et al.,
John James Altimonte, pro se
Utica, NY 13501
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff pro se John James Altimonte filed this action against Dr. Ronald M. Leboz,
Carol Altimonte, and Joseph Paul Altimonte, alleging that he and his mother have been the
victims of “human trafficking.” (Dkt. No. 5). This matter was referred to United States
Magistrate Judge Thérèse Wiley Dancks who, on July 21, 2021, issued a ReportRecommendation recommending that Plaintiff’s complaint be dismissed, with leave to amend.
(Dkt. No. 7). Magistrate Judge Dancks noted that “the collection of allegations in Plaintiff’s
complaint do not provide any indication of the causes of action Plaintiff intends to assert against
Defendants or whether this Court has jurisdiction over the action.” (Id. at 4). Insofar as Plaintiff
sought to rely on 18 U.S.C. §§ 241, 242, Magistrate Dancks noted that these are criminal statutes
which do not give rise to civil liability. (Id. at 5 n.4). Magistrate Judge Dancks advised Plaintiff
that, under 28 U.S.C. § 636(b)(1), he had fourteen days within which to file written objections to
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the Report, and that failure to object to the Report within fourteen days would preclude appellate
review. (Id. at 6).
On August 4, 2021, Plaintiff filed a letter labeled “objection.” (Dkt. No. 8). For the
reasons set forth below, the Report-Recommendation is adopted, and the complaint is dismissed
without prejudice and with leave to amend.
This court reviews de novo those portions of the Magistrate Judge’s findings and
recommendations that have been properly preserved with a specific objection. Petersen v.
Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). “A proper
objection is one that identifies the specific portions of the [report-recommendation] that the
objector asserts are erroneous and provides a basis for this assertion.” Kruger v. Virgin Atl.
Airways, Ltd., 976 F. Supp. 2d 290, 296 (E.D.N.Y. 2013) (internal quotation marks omitted).
Properly raised objections must be “specific and clearly aimed at particular findings” in the
report. Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009). “[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 . . . .” Machicote v. Ercole, No. 06-cv-13320,
2011 WL 3809920, at *2, 2011 U.S. Dist. LEXIS 95351, at *4 (S.D.N.Y. Aug. 25, 2011)
(citation omitted). Findings and recommendations as to which there was no properly preserved
objection are reviewed for clear error. Id.
In his letter objection Plaintiff asserts additional facts. (Dkt. No. 8). Plaintiff states that he
observed his mother “trafficked to death” by the Defendants – Plaintiff’s siblings and their
spouses. (Id. at 1–2). Plaintiff asserts that the Defendants denied his mother medical attention
when she was suffering from traumatic brain injury; that Defendant Carol Altimonte “falsely
imprisoned” Plaintiff’s mother at a local hospital; and that Defendant Carol Altimonte was
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“trying to kill my mother and me.” (Id. at 7, 9). Plaintiff has, however, failed to identify any
portion of the Report-Recommendation that Plaintiff asserts to be error. Plaintiff has failed to
articulate any objection to Magistrate Judge Dancks’ determination that the complaint “[does]
not provide any indication of the causes of action Plaintiff intends to assert against Defendants or
whether this Court has jurisdiction over the action.” (Dkt. No. 7, at 4). 1 Plaintiff has thus failed
to preserve an objection to the Report-Recommendation, and the Court’s review is for clear
error. Having reviewed the Report-Recommendation for clear error and found none, the Court
adopts it for the reasons stated therein.
For these reasons, it is hereby
ORDERED that Magistrate Judge Dancks’ Report-Recommendation (Dkt. No. 7) is
ADOPTED in all respects; and it is further
ORDERED that Plaintiff’s complaint is DISMISSED, with leave to amend within thirty
(30) days from the date of this Order; and it is further
ORDERED that, if Plaintiff fails to file an amended complaint within 30 days from the
date of this Order or to request an extension of time to do so, the Clerk is directed to enter
judgment without further order of this Court; and it is further
ORDERED that the Clerk serve a copy of this Order on Plaintiff in accordance with the
IT IS SO ORDERED.
September 7, 2021
Syracuse, New York
The Court notes that Plaintiff filed this action using a form for civil rights complaints under 42 U.S.C. § 1983.
Section 1983 provides a cause of action for constitutional or statutory violations, committed by a person acting “under
color of state law.” 42 U.S.C. § 1983. A person acts under color of state law “only when exercising power ‘possessed
by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” Polk
County v. Dodson, 454 U.S. 312, 317–18 (1981) (citation omitted). Here, the Defendants are private individuals and
there is no indication that any of the Defendants acted under color of state law.
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