Smythe v. Bish et al
DECISION AND ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 105 ) is APPROVED and ADOPTED in its entirety. ORDERED, that Defendants' motion for summary judgment (Dkt. No. 93 ) is GRANTED, and Plaintiff's second amended complaint (Dkt. No. 38 ) is DISMISSED in its entirety. Signed by Senior Judge Lawrence E. Kahn on 6/30/17. (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JOHN BISH, et al.,
DECISION AND ORDER
This matter comes before the Court following an Order and Report-Recommendation
filed on May 16, 2017, by the Honorable Andrew T. Baxter, U.S. Magistrate Judge, pursuant to
28 U.S.C. § 636(b) and Local Rule 72.3(c). Dkt. No. 105 (“Report-Recommendation”). Pro se
plaintiff Francis Smythe filed Objections. Dkt. No. 106 (“Objections”).
Within fourteen days after a party has been served with a copy of a magistrate judge’s
report-recommendation, 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. 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, 306 n.2 (N.D.N.Y. 2008), overruled on
other grounds by Widomski v. State Univ. of N.Y. (SUNY) at Orange, 748 F.3d 471 (2d Cir.
2014); see also Machicote v. Ercole, No. 06-CV-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). Otherwise, a court “shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made.” Id.
Smythe makes one specific objection to the Report-Recommendation: Judge Baxter
improperly shifted the burden of proof onto Smythe in finding that any mistakes made by
Defendant McLoughlin were harmless. Objs. at 7. Smythe claims that Judge Baxter
“acknowledge[d] that Defendant McLoughlin lied about interviewing Bish,” id., but that is false.
In his Report-Recommendation, Judge Baxter explicitly declined to decide whether McLoughlin
lied. Rep.-Rec. at 8. Instead, Judge Baxter found that even if McLoughlin had lied and provided
inadequate assistance, these errors were harmless because of the “subsequent efforts to find Mr.
Bish by hearing officer Wolczyk,” id. at 12, and because the hearing officer attempted to obtain
all of the witnesses Smythe requested, id. at 10. As Judge Baxter correctly applied the harmless
error doctrine here, Pilgrim v. Luther, 571 F.3d 201, 206 (2d Cir. 2009), Smythe’s claim that a
finding of harmless error improperly shifts the burden of proof onto him lacks merit.
The Court has reviewed the remainder of the Report-Recommendation for clear error and
has found none.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 105) is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED, that Defendants’ motion for summary judgment (Dkt. No. 93) is
GRANTED, and Plaintiff’s second amended complaint (Dkt. No. 38) is DISMISSED in its
entirety; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.
June 30, 2017
Albany, New York
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