Nickelson v. Fischer et al
DECISION AND ORDER: ORDERED that Magistrate Judge Dancks' Report-Recommendation (Dkt. No. 70 ) is ACCEPTED and ADOPTED in its entirety. ORDERED that Defendants' motion to dismiss Plaintiff's Amended Complaint (or to award Defendan ts monetary relief) as sanction for Plaintiff's multiple violation of a discovery order pursuant to Fed. R. Civ. P. 37 (Dkt. No. 67 ) is DENIED without prejudice. ORDERED that defendants are directed to reschedule Plaintiff's videographic or telephonic deposition within thirty (30) days of the date of this Decision and Order. Signed by Chief Judge Glenn T. Suddaby on 9/28/17. (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ANTHONY J. ANNUCCI; THERESA KNAPP-DAVID,
and CARL J. KOENIGSMANN,
Plaintiff, Pro Se
240 West 104th Street, #4E
New York, New York 10025
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
Albany, New York 12224
RYAN W. HICKEY, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Darrell
Nickelson (“Plaintiff”) against the three above-captioned employees of the New York State
Department of Corrections and Community Supervision (“Defendants”), are (1) United States
Magistrate Judge Thérèse Wiley Dancks’ Report-Recommendation recommending that
Defendants’ motion to dismiss Plaintiff’s Amended Complaint (or to award Defendants
monetary relief) as sanction for Plaintiff’s multiple violation of a discovery order pursuant to
Fed. R. Civ. P. 37 be denied without prejudice, and (2) Plaintiff’s Objections to the Report-
Recommendation. (Dkt. Nos. 70, 72.)
STANDARD OF REVIEW
When a specific objection is made to a portion of a magistrate judge's report-
recommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection
must, with particularity, “identify  the portions of the proposed findings, recommendations, or
report to which it has an objection and  the basis for the objection.” N.D.N.Y. L.R. 72.1(c).1
When performing such a de novo review, “[t]he judge may . . . receive further evidence. . . .” 28
U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary
material that could have been, but was not, presented to the magistrate judge in the first
instance.2 Similarly, a district court will ordinarily refuse to consider argument that could have
See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(“Although Mario filed objections to the magistrate's report and recommendation, the statement
with respect to his Title VII claim was not specific enough to preserve this claim for review. The
only reference made to the Title VII claim was one sentence on the last page of his objections,
where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set
forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’
This bare statement, devoid of any reference to specific findings or recommendations to which
he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title
See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In
objecting to a magistrate's report before the district court, a party has no right to present further
testimony when it offers no justification for not offering the testimony at the hearing before the
magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v.
Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (finding that district court did not
abuse its discretion in denying plaintiff's request to present additional testimony where plaintiff
“offered no justification for not offering the testimony at the hearing before the magistrate”); cf.
U. S. v. Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to
require the district court to conduct a second hearing whenever either party objected to the
magistrate's credibility findings would largely frustrate the plain objective of Congress to
alleviate the increasing congestion of litigation in the district courts.”); Fed. R. Civ. P. 72(b),
been, but was not, presented to the magistrate judge in the first instance. See Zhao v. State Univ.
of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is established
law that a district judge will not consider new arguments raised in objections to a magistrate
judge's report and recommendation that could have been raised before the magistrate but were
not.”) (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F. Supp.2d 311,
312-13 (W.D.N.Y. 2009) (“In this circuit, it is established law that a district judge will not
consider new arguments raised in objections to a magistrate judge's report and recommendation
that could have been raised before the magistrate but were not.”) (internal quotation marks
When only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007
(2d Cir. 1999). Similarly, when an objection merely reiterates the same arguments made by the
objecting party in its original papers submitted to the magistrate judge, the Court subjects that
portion of the report-recommendation challenged by those arguments to only a clear error
review.3 Finally, when no objection is made to a portion of a report-recommendation, the Court
Advisory Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a
secondary evidentiary hearing is required.”).
See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers
or arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or
Local Civil Rule 72.3(a)(3).”); Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F.
Supp. 380, 382 (W.D.N.Y. 1992) (explaining that court need not consider objections that merely
subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error”
review, “the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” Id.4
After conducting the appropriate review, the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
Even when construed with the utmost of special leniency, Plaintiff’s Objections to the
Report-Recommendation do not challenge any specific portion of the Report-Recommendation.
(Compare Dkt. No. 72 [Plf.’s Obj.] with Dkt. No. 70 [Report-Recommendation].) Rather,
Plaintiff’s Objections appear to attempt to reply to various of the defenses asserted in
Defendants’ Answer to his Second Amended Complaint. (Compare Dkt. No. 72 [Plf.’s Obj.]
with Dkt. No. 65 [Defs.’ Answer to Second Am. Compl.].) As a result, the Court needs to
subject the Report-Recommendation to only a clear-error review. See, supra, Part I of this
Decision and Order.
constitute a "rehashing" of the same arguments and positions taken in original papers submitted
to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL
3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue,
07-CV-1077, 2010 WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte
v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe,
See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]
report to which no specific objection is made, so long as those sections are not facially
erroneous.”) (internal quotation marks and citations omitted).
After carefully reviewing the relevant papers herein, including Magistrate Judge Dancks’
thorough Report-Recommendation, the Court can find no clear error in the ReportRecommendation: Magistrate Judge Dancks has employed the proper standards, appears to have
accurately recited the facts, and has reasonably applied the law to those facts. As a result, the
Report-Recommendation is accepted and adopted in its entirety for the reasons stated therein.
(Dkt. No. 70.) To those reasons the Court would add only one point.
Plaintiff has chosen to file and pursue this action, and has a duty to provide the Court
(and Defendants) with an address at which he can receive mail. N.D.N.Y. 10.1(c)(2). His
assertion that he is (sometimes) unable to receive mail at 240 West 103th Street, #4E appears
undermined by (1) the fact that he has listed it as his address of record in this action (and not
subsequently filed a change-of-address notice), and (2) the fact that he has recently continued to
list it as his return address on his correspondence with the Court. (Dkt. No. 60; Dkt. No. 68,
Attach. 1; Dkt. No. 69, at 1; Dkt. No. 69, Attach. 1.) In crediting Plaintiff’s assertion that he
failed to receive Defendants’ prior deposition notices, Magistrate Judge Dancks has extended
Plaintiff the utmost of special leniency. Of course, special leniency has its limits. This case is
more than two-and-a-half years old without Plaintiff’s deposition having yet been taken. He is
directed to participate in his next noticed deposition, and respectfully advised that, should be fail
to do so, his Second Amended Complaint will be dismissed.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Dancks’ Report-Recommendation (Dkt. No. 70) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion to dismiss Plaintiff’s Amended Complaint (or to
award Defendants monetary relief) as sanction for Plaintiff’s multiple violation of a discovery
order pursuant to Fed. R. Civ. P. 37 (Dkt. No. 67) is DENIED without prejudice; and it is
ORDERED that defendants are directed to reschedule Plaintiff’s videographic or
telephonic deposition within thirty (30) days of the date of this Decision and Order.
Dated: September 28, 2017
Syracuse, New York
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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