Walker v. Fischer et al

Filing 120

DECISION AND ORDER adopting Magistrate Judge Baxter's 116 Report and Recommendations; granting Defendants' 109 Motion for Summary Judgment; dismissing the Complaint in its entirety. Signed by Senior Judge Thomas J. McAvoy on 9/19/2011. (amt) [Pltf served via reg. mail]

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
TYRONE WALKER,
Plaintiff,
v.

9:08-CV-1078
(TJM/ATB)

BRIAN FISCHER, et al.,
Defendants.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
This pro se action brought pursuant to 42 U.S.C. § 1983 was referred by this Court

to the Hon. Andrew T. Baxter, United States Magistrate Judge, for a Report and
Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule N.D.N.Y. 72.3(c). In his
July 25, 2011 Report-Recommendation, Magistrate Judge Baxter recommended that
Defendants' motion for summary judgment (Dkt. No. 109) be granted and the action
dismissed. Plaintiff has filed objections to this recommendation, dkt. # 117, and
Defendants have file a letter brief in response to Plaintiff’s objections. Dkt. # 118.
II.

STANDARD OF REVIEW
When objections to a magistrate judge's report and recommendation are lodged,

the district court makes a “de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” See 28
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U.S.C. § 636(b)(1)(C); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d
Cir.1997)(The Court must make a de novo determination to the extent that a party makes
specific objections to a magistrate's findings.). “[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.” Machicote v. Ercole, 2011 WL 3809920, at * 2
(S.D.N.Y., Aug. 25, 2011)(citations and interior quotation marks omitted); DiPilato v.
7-Eleven, Inc., 662 F. Supp.2d 333, 340 (S.D.N.Y. 2009)(same). By the same reasoning,
a party may not advance new theories that were not presented to the magistrate judge in
an attempt to obtain this second bite at the apple. See Calderon v. Wheeler, 2009 WL
2252241, at *1, n. 1 (N.D.N.Y. July 28, 2009);1 Green v. City of New York, 2010 WL
148128, at * 4 (E.D.N.Y. Jan. 14, 2010)(“[N]ew claims . . . presented in the form of, or
along with, ‘objections . . .’ should be dismissed.”)(citations omitted).
General or conclusory objections, or objections which merely recite the same
arguments presented to the magistrate judge, are reviewed for clear error. Farid v. Bouey,

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As Judge Suddaby noted in Calderon:

On de novo review, “[t]he judge m ay ... receive further evidence ....” 28 U.S.C. §
636(b)(1)(C). However, a district court will ordinarily refuse to consider argum ents, case law
and/or evidentiary m aterial that could have been, but was not, presented to the Magistrate
Judge in the first instance. See, e.g ., Paddington Partners v. Bouchard, 34 F.3d 1132,
1137-38 (2d Cir. 1994) (“In objecting to a m agistrate's report before the district court, a party
has no right to present further testim ony when it offers no justification for not offering the
testim ony at the hearing before the m agistrate.”) [internal quotation m arks and citations
om itted]; Pan Am . W orld Airways, Inc. v. Int'l Bhd. of Team sters, 894 F.2d 36, 40, n. 3 (2d
Cir.1990) (district court did not abuse its discretion in denying plaintiff's request to present
additional testim ony where plaintiff “offered no justification for not offering the testim ony at
the hearing before the m agistrate”).

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554 F. Supp. 2d 301, 306 n. 2 (N.D.N.Y. 2008); see Frankel v. N.Y.C., 2009 WL 465645 at
*2 (S.D.N.Y. Feb. 25, 2009). After reviewing the report and recommendation, the Court
may “accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge. The judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1)(C).
III.

DISCUSSION
With this standard in mind, and after having reviewed Plaintiff’s objections, the

Court determines to adopt the recommendations for the reasons stated in Magistrate
Judge Baxter’s thorough report. Petitioner has not pointed any error in Magistrate Judge
Baxter’s analysis, and the Court finds that those portions of the Report-Recommendation
and Order that Plaintiff has chosen to reargue are not clearly erroneous. To the extent
Plaintiff’s objections raise new theories or arguments based on a February 28, 2011
restraint order that was not presented in the prior pleadings or in opposition to the
Defendants’ motion, the arguments or theories are rejected inasmuch as Plaintiff has
failed to offer a valid justification for failing to raise the claim previously.
IV.

CONCLUSION
Therefore, the Court ADOPTS the recommendations made by Magistrate Judge

Baxter in their entirety. Accordingly, it is hereby ORDERED that Defendants' motion for
summary judgment (Dkt. No. 109) is GRANTED and the complaint is DISMISSED IN ITS
ENTIRETY.
IT IS SO ORDERED
Dated: September 19, 2011

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