Lewis v. Stanton

Filing 23

ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 21 ) is APPROVED and ADOPTED in its entirety. ORDERED, that Defendant's Partial Motion (Dkt. No. 13 ) to dismiss is GRANTED. ORDERED, that Plaintiff's (i) federal and state law claims against Defendant in his official capacity, and (ii) state law claims against Defendant in his personal capacity are DISMISSED without leave to amend. ORDERED, that Defendant must respond to Plaintiff's 42 U.S.C. § 1983 claim against him in his personal capacity in accordance with the Federal Rules of Civil Procedure. Signed by Senior Judge Lawrence E. Kahn on 7/7/14. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
REUBEN LEWIS,
Plaintiff,
-against-

9:13-CV-1172 (LEK/TWD)

STANTON,
Defendant.
___________________________________
ORDER
This matter comes before the Court following a Report-Recommendation filed on April 29,
2014, 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. 21 (“Report-Recommendation”). Judge Dancks
recommends that Defendant’s Partial Motion to dismiss for failure to state a claim be granted as to:
(1) Plaintiff’s claims against Defendant in his official capacity;1 and (2) Plaintiff’s state law claims
against Defendant in his personal capacity. Report-Rec. at 9.
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 filed . . .
reviewing courts should review a report and recommendation for clear error.” Edwards v. Fischer,
414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006); see also Cephas v. Nash, 328 F.3d 98, 107 (2d Cir.
2003) (“As a rule, a party’s failure to object to any purported error or omission in a magistrate

1

Although Defendant did not move for dismissal of Plaintiff’s federal law claims against
Defendant in his official capacity, Judge Dancks recommends that the Court dismiss these claims
sua sponte based on Eleventh Amendment sovereign immunity. Report-Rec. at 6-7 & n.3; see also
28 U.S.C. § 1915(e)(2).

judge’s report waives further judicial review of the point.”); Farid v. Bouey, 554 F. Supp. 2d 301,
306 (N.D.N.Y. 2008).
Plaintiff responded to the Report-Recommendation, but did not raise any objections. See
Dkt. No. 22. Accordingly, the Court has reviewed the Report-Recommendation for clear error.
Having found none, the Report-Recommendation is approved and adopted in its entirety.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 21) is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED, that Defendant’s Partial Motion (Dkt. No. 13) to dismiss is GRANTED; and it
is further
ORDERED, that Plaintiff’s (i) federal and state law claims against Defendant in his official
capacity,2 and (ii) state law claims against Defendant in his personal capacity are DISMISSED
without leave to amend; and it is further
ORDERED, that Defendant must respond to Plaintiff’s 42 U.S.C. § 1983 claim against him
in his personal capacity in accordance with the Federal Rules of Civil Procedure; and it is further
ORDERED, that the Clerk serve a copy of this Order upon the parties to this action in
accordance with the Local Rules.

2

The Court notes that the New York State Court of Claims is the proper forum for Plaintiff’s
state law claims against Defendant in his official capacity. See N.Y. CORRECT. LAW § 24(2).
Accordingly, although Plaintiff’s state law claims against Defendant in his official capacity are
dismissed without leave to amend, this dismissal is without prejudice to raising those claims in the
New York State Court of Claims.
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IT IS SO ORDERED.
DATED:

July 07, 2014
Albany, New York

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