Scott et al v. Uhler et al

Filing 52

DECISION AND ORDER: ORDERED that the Court accepts and adopts Magistrate Judge Hummel's February 8, 2017 Report-Recommendation and Order, Dkt. No. 47 , in its entirety. Accordingly, defendants' motion for dismissal (Dkt. No. 35 ) is GR ANTED, and the Complaint is DISMISSED. Plaintiffs are given leave of thirty (30) days in which to file an amended complaint. Plaintiffs are advised that if they file an amended complaint, they must properly allege in the amended complaint all factual bases for all claims asserted therein. The failure to file an amended complaint within this time frame will be deemed as an abandonment of the dismissed claims, and a "with prejudice" dismissal will be entered on the Court's docket on the dismissed claims without further order by the Court. Signed by Senior Judge Thomas J. McAvoy on 3/17/17. {order served via regular mail on plaintiffs}(nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
JAMES N. SCOTT, et al.,
Plaintiffs,
v.

No. 9:16-CV-403
(TJM/CFH)

D. UHLER, 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 to the Hon.

Christian F. Hummel, United States Magistrate Judge, for a Report and Recommendation
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
In his February 8, 2017 Report-Recommendation and Order, Dkt. No. 47, Magistrate
Judge Hummel recommends that defendants’ motion for dismissal (Dkt. No. 35) be granted,
and that plaintiffs be given thirty (30) days in which to file an amended complaint. Plaintiffs
Lawrence Elliott and James N. Scott each filed objections to the recommendations. Dkt.
Nos. 47 (Elliott’s objection) and 49 (Scott’s objections).
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
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proposed findings or recommendations to which objection is made.” See 28 U.S.C. §
636(b)(1); 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).
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,
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).
III.

DISCUSSION
Elliott’s objection is wholly conclusory, stating only that he is “writing [his] objection to

the foregoing report.” Dkt. No. 48. He offers no reason why any of the conclusions or
recommendations of Magistrate Judge Hummel should not be adopted. See id. T his
conclusory objection fails to point to any error, let alone clear error, by Magistrate Judge
Hummel. Moreover, as discussed below with regard to Scott’s objections, a de novo review

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of the issues addressed by Scott’s objections leads the Court to adopt Magistrate Judge
Hummel’s recommendations. Therefore, Elliott’s objection is overruled.
Scott’s objections are, for the most part, simply a re-argument of the issues
presented to and reviewed by Magistrate Judge Hummel. Like Elliott, Scott fails to point to
clear error committed by Magistrate Judge Hummel. Furthermore, having considered
Scott’s objections and having completed a de novo review of the issues raised by the
objections, the Court accepts and adopts Magistrate Judge Hummel’s recommendations for
the reasons stated in his thorough report.
The only specific objection raised by Scott is an objection to footnote 2 in Magistrate
Judge Hummel’s Report-Recommendation and Order, stating that “Scott, as a pro se
litigant, ‘is not empowered to proceed on behalf of anyone other than himself.’" Rep. Rec. &
Ord., p. 3, fn. 2 (quoting Khalil v. Laird, 353 F. App'x 620, 621 (2d Cir. 2009)). Scott asserts
that he “oppose[s] this ruling due to the fact that as the primary litigant, [he] initiated the
original complaint as a class action lawsuit, and not a class of one as your Honor seems to
imply.” Dkt. No. 51, p. 2. Scott’s objection is without merit. Whether he intended to start
this action as a class action is irrelevant. As stated by Magistrate Judge Hummel, a pro se
litigant cannot proceed on behalf of anyone other than himself. Furthermore, under Federal
Rule of Civil Procedure 23 (g)(1), the appointment of class counsel is a prerequisite to
certifying a class action of the type alleged in the complaint. Because Scott, as a pro se
litigant, cannot proceed on behalf of anyone other than himself, he is unable to serve as the
class counsel required to prosecute the instant action on behalf of a class of plaintiffs.
Accordingly, Scott’s objections are, in all respects, overruled.

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IV.

CONCLUSION
For the reasons discussed above, the Court accepts and adopts Magistrate Judge

Hummel’s February 8, 2017 Report-Recommendation and Order, Dkt. No. 47, in its entirety.
Accordingly, defendants’ motion for dismissal (Dkt. No. 35) is GRANTED, and the
Complaint is DISMISSED. Plaintiffs are given leave of thirty (30) days in which to file an
amended complaint.
Plaintiffs are advised that if they file an amended complaint, they must properly
allege in the amended complaint all factual bases for all claims asserted therein. The
failure to file an amended complaint within this time frame will be deemed as an
abandonment of the dismissed claims, and a “with prejudice” dismissal will be entered on
the Court’s docket on the dismissed claims without further order by the Court.
IT IS SO ORDERED.
Dated:March 17, 2017

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