Norasteh v. United States Department of Education

Filing 25

ORDER re: 7 Motion to Dismiss, Motion for Summary Judgment, filed by United States Department of Education and 21 Report and Recommendation. The Report and Recommendation of United States Magistrate Judge James C. Francis IV dated March 18, 201 1 shall be and the same hereby is APPROVED, ADOPTED, and RATIFIED by the Court in its entirety. Pursuant to Magistrate Judge Francis' recommendation, Defendant's Motion for Summary Judgment is GRANTED in its entirety; Because Plaintiff file d no timely Objections, despite the Report's warning that failure to file timely Objections would waive appellate review, no certificate of appealability shall issue. The Clerk of the Court is directed to close the docket in this case. (Signed by Judge Deborah A. Batts on 6/22/2011) (ab)

·USDCSDNY

DOCUMENT .
. ELECfROmCALLY 'FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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PAYMAN NORASTEH,

Plaintiff,
-against-

DOC #:
DATEFIl..ED:

.
b/ll /.

//

.

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10 CV 2226 (DAB)
ORDER

UNITED STATES DEPARTMENT OF
EDUCATION,
Defendant.

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DEBORAH A. BATTS, United States District Judge.
On March 18, 2011, United States Magistrate Judge James C.
Francis issued a Report and Recommendation ("Report"),
recommending that Defendant's Motion for Summary Judgment be
GRANTED in its entirety.

(Report at 1.)

For the reasons set

forth below, after appropriate review following the objections of
Parties, the Report and Recommendation of Magistrate Judge
Francis dated March 18, 2011 shall be adopted as to its factual
recitations (id. at 1-4), and its findings and recommendations
regarding Plaintiff's substantive legal claims (id. at 1, 4-12).
Accordingly, the Court grants Defendants' Motion for Summary
Judgment in its entirety.

I.

Objections to the Report and Recommendation
"Within fourteen days after being served with a copy [of a

Magistrate Judge's Report and Recommendation], a party may serve
and file specific written objections to the proposed findings and

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recommendations."
636(b) (1) (C).

Fed. R. Civ. P. 72(b) (2); accord 28 U.S.C.

§

The court may adopt those portions of the report

to which no timely objection has been made, as long as there is
no clear error on the face of the record.

Wilds v. United Parcel

Serv., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003).

A district

court must review de novo "those portions of the report or
specified proposed findings or recommendations to which objection
is made."

28 U.S.C.

§

636(b) (1) eC).

"To the extent, however,

that the party makes only conclusory or general arguments, or
simply reiterates the original arguments, the Court will review
the Report strictly for clear error."

Indymac Bank, F.S.B. v.

Nat'l Settlement Agency, Inc., No. 07-CV-6865, 2008 WL 4810043,
at *1 (S.D.N.Y. Nov. 3, 2008); see also Ortiz v. Barkley, 558
F. Supp. 2d 444, 451 (S .D.N. Y. 2008)

("Reviewing courts should

review a report and recommendation for clear error where
objections are merely perfunctory responses l

argued in an attempt

to engage the district court in a rehashing of the same arguments
set forth in the original petition.")
quotation marks omitted).

(citation and internal

After conducting the appropriate

levels of review, the Court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
Magistrate.

28 U.S.C.

§

636 (b) (1) (C).

The objections of pro se parties are "generally accorded
2

leniency and should be construed to raise the strongest arguments
that they suggest."

Howell v. Port Chester Police Station, 2010

WL 930981, at *1 (S.D.N.Y. Mar. 15, 2010)

(citation omitted).

"Nonetheless, even 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."

Id.

(quoting Pinkney v. Progressive Horne Health

Servs., No. 06-CV-5023, 2008 U.S. Dist. LEXIS 55034, at *2-3
(S.D.N.Y. July 21, 2008)

(internal quotations marks omitted».

The Federal Rules of Civil Procedure establish a presumption
that items sent by mail are received within three days.
~,

See,

Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148

n. 1, 104 S.Ct. at 1724 n. 1 (citing Fed. R. Civ. P. 6(e».

In

any event, Pro Se Plaintiff admits having received a copy of the
Report no later than March 24, 2011.

Letter from Plaintiff to

Pro Se Office, dated April 12, 2011, at 1 ("Dated March 18th,
2011 and sent by U.S. Postal Service First Class mail,
Magistrate's recommendation arrived nearly a week later on
Thursday, March 24th when I received it at about 9 p.m.).
Accordingly, Plaintiff was given adequate notice that Objections
were to be filed no later than April 4, 2011.

Report at 12

("[T]he parties shall have fourteen (14) days from [March 18,
3

2011] to file written objections . . • Such objections shall be
filed with the Clerk of the Court . . . ").

The Report also warned

Plaintiff that failure to file timely objections would preclude
appellate review. Report at 13.
Plaintiff's Objections, filed April 6, 2011, were untimely.
Further, because Plaintiff has not submitted a memorandum of law
in support of his position, has not cited to any legal authority
that might compel a different result, and has failed to point to
any citation in the record where Magistrate Judge Francis erred
in either his findings of fact or conclusions of law, Plaintiff's
conclusory objections would not assist the Court in its review of
the Report even if they had been filed timely.

Accordingly, this

Court disregards Plaintiff's Objections and reviews the Report
for clear error.

II.

Conclusion
This Court having reviewed the Report and Recommendation and

having found no clear error on the face of the record, it is
hereby ORDERED AND ADJUDGED as follows:
1.

The Report and Recommendation of United States

Magistrate Judge James C. Francis IV dated March 18, 2011 shall
be and the same hereby is APPROVED, ADOPTED, and RATIFIED by the
Court in its entiretYi
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2.

Pursuant to Magistrate Judge Francis's recommendation,

Defendant's Motion for Summary Judgment is GRANTED in its
entirety;
3.

Because Plaintiff filed no timely Objections, despite

the Report's warning that failure to file timely Objections would
waive appellate review, no certificate of appealability shall
issue.

The Court certifies that any appeal from this Order or

from the Report would not be taken in good faith.

Coppedge

v. United States, 369 U.S. 438, 444-45 (1962); and
4.

The Clerk of the Court is directed to close the docket

in this case.

SO ORDERED.
Dated:

New York, New York

~me."

"",2, 2011

DEBORAH A. BATTS

United States District Judge

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