Lee v. Graham et al

Filing 45

DECISION and ORDER: ORDERED that the Report-Recommendation, dkt. # 33 , is hereby ADOPTED. ORDERED that Defendants' motion to dismiss, dkt. # 23 , is hereby GRANTED; Plaintiff's complaint is hereby DISMISSED WITHOUT PREJUDICE for fail ure to adopt administrative remedies. ORDERED that Plaintiff's First Amendment retaliation claim is DISMISSED WITHOUT PREJUDICE for failure to exhaust and for failure to state a claim upon which relief can be granted. Plaintiff's claims against Defendants in their official capacities are DISMISSED WITH PREJUDICE. Signed by Senior Judge Thomas J. McAvoy on 12/23/14. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
KAREEM LEE,
Plaintiff,
v.

9:13-CV-1022

DAVID O’HARER, et al.,
Defendants.
________________________________________

DECISION & ORDER

Thomas J. McAvoy, Senior District Judge.
This action, in which Plaintiff seeks review of a decision by the Commissioner of
Social Security denying her son’s application for Supplemental Security Income (“SSI”),
was referred to the Honorable Andrew T. Baxter, United States Magistrate Judge, for a
Report-Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
In the Report-Recommendation, dated May 28, 2014, Magistrate Judge Baxter
recommends that Defendants’ motion to dismiss (dkt. # 23) be granted and the complaint
dismissed in its entirety without prejudice for failure to exhaust administrative remedies.
Magistrate Judge Baxter also recommends that Plaintiff’s First Amendment retaliation
claim be dismissed without prejudice for failure to exhaust and for failure to state a claim,
and that Plaintiff’s claims against Defendants in their official capacities be dismissed with
prejudice, as they are barred by the Eleventh Amendment.
Plaintiff has filed objections to the Report-Recommendation. Because objections
have been filed, the Court has reviewed the record de novo. See 28 U.S.C. § 636(b)(1).
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After such a review, the Court may “accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The Court may also receive
further evidence or recommit the matter to the magistrate judge with instructions.” Id.
Having reviewed the record de novo, the Court has determined to accept and adopt the
recommendation for the reasons stated therein.
It is therefore ordered that:
(1) The Report-Recommendation, dkt. # 33, is hereby ADOPTED;
(2) Defendants’ motion to dismiss, dkt. # 23, is hereby GRANTED;
(3) Plaintiff’s complaint is hereby DISMISSED WITHOUT PREJUDICE for failure to
adopt administrative remedies;
(4) Plaintiff’s First Amendment retaliation claim is DISMISSED WITHOUT
PREJUDICE for failure to exhaust and for failure to state a claim upon which relief can be
granted; and
(5) Plaintiff’s claims against Defendants in their official capacities are DISMISSED
WITH PREJUDICE.

IT IS SO ORDERED.
Dated: December 23, 2014

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