Best v. A.C.S. et al

Filing 51

ORDER ADOPTING REPORT AND RECOMMENDATION for 40 Report and Recommendations. After reviewing the record, the Court finds that Judge Netburn's well-reasoned Report is not facially erroneous. Accordingly, the Court adopts the Report in its entir ety and, for the reasons set forth therein, DENIES Plaintiff's motion for a preliminary injunction concerning his visitation rights. Because Plaintiff's request was never docketed as a "Motion" on ECF, there is no motion to termin ate. Nonetheless, the Clerk of the Court is respectfully requested to note that this Order disposes of the request for a preliminary injunction made by Plaintiffs at Doc. Nos. 16 and 17. (Signed by Judge Richard J. Sullivan on 4/10/2013) Copies Sent By Chambers. (tro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BISHOP FRANK BEST,
Plaintiff,
-v-

No. 12 Civ. 07874 (RJS)(SN)
DER ADOPTING REPORT AND
RECOMMENDAnON

CITY OF NEW YORK et aI.,
Defendants.

RICHARD J. SULLIVAN, District Judge:
Plaintiff, proceeding pro se, initiated this acti· n on October 22, 2012, alleging that the
Administration for Children's Services ("AC.S.") i properly removed his children from his
custody and requesting their return. I

On January

Honorable Sarah Netburn, Magistrate Judge, for

5, 2013, this matter was referred to the
g~eral

pretrial supervision and dispositive

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motions requiring a report and recommendation. (Doc. No. 14.) On January 29, 2013, Plaintiff
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filed a proposed Order to Show Cause and letter re1uesting that the Court issue a preliminary
injunction granting him weekend visitation rights.

(poc. Nos. 16, 17.)

All three Defendants

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submitted their opposition to Plaintiffs motion (Dod Nos. 25, 38, 30), and Plaintiff thereafter
submitted a reply (Doc. No. 34).

On February 20, ~013, Judge Netburn issued a Report and

Recommendation (the "Report") recommending that PI intiffs motion for a preliminary injunction
be denied. (Doc. No. 40.)
The Report explained that there is currently a ase pending in the New York State Family
Court for Queens County ("Family Court") concerning the same custody issues presented in this
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The Complaint initially named three Defendants: A.C.S., Lutheran Social Services, and Episcopal Social Services.
(Doc. No.2.) Plaintiffs reason for including the latter two Defelndants is not entirely clear, but it appears that these
entities either cared for or had custody over Plaintiffs children
various times. In a decision dated November 27,
2012, the Court ordered that the claims against A.C.S. be dismisse and the City of New York be added as a defendant.
(Doc. No.6.)
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lawsuit, thus triggcring thc Younger abstcntion doctrinc see Younger v. Harris, 401 U.S. 37 (1971),
and bccause Plaintiff is unablc to establish an exception to this doctrine, the request to this Court for
a preliminary injunction should bc denied. Thc Report Iso advised the partics on the proccdurc and
dcadline for filing an objection to the Report.
Plaintiff sent a two-page, handwrittcn lcttcr to he Court, datcd February 27, 2013. (Doc.
No. 43.) Although Plaintiffs letter is sometimcs har to follow, thc lcttcr basically recitcs thc
following: Plaintiff madc a request to have his dayti •c and weekend visits returned to him and
Defendants did not provide any reason for this not to

b~

done; he has been observed for two years

without problems; he received the clinical attention ordered by the Family Court Judge; he objects
to the adjournments granted (presumably in the Family Court proceeding); and he requested that he
be provided a lawyer. The letter neither specifically m ntions the Report issued by Judge Netburn
nor references the analysis in the Report, such as the

stention doctrine upon which the Report's

recommendation is based.
A court may accept, reject, or modify, in whole or in part, the findings or recommendations
made by a magistrate judge. See Fed. R. Civ. P. 72(b) Grassia v. Scully, 892 F.2d 16, 19 (2d Cir.
1989). A court may accept those portions of a magjstrate judge's report to which no specific,
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written objection is made, as long as the factual and Ilegal bases supporting the findings are not
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clearly erroneous. See Adee Motor Cars, LLC v. Amato p 388 F. Supp. 2d 250,253 (S.D.N.Y. 2005);
Greene v. WCI Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.V. 1997) (citing Fed. R. Civ. P. neb)
and Thomas v. Am, 474 U.S. 140, 149 (1985)).

A magistrate judge's decision is "clearly

erroneous" only if the district court is "left with the de mite and firm conviction that a mistake has
been committed." Easley v. Cromartie, 532 U.S. 234 242 (2001) (quoting United States v.
Gypsum Co., 333 U.S. 364, 395 (1948)).

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u.s.

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To the extent that a party raises specific objections to a magistrate judge's findings, the
Court must undertake de novo review of such objection. See 28 U.S.C. § 636(b)(1); United States
v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Ho ever, where a party's objections to a report
and recommendation are "conclusory or general,"

"simply reiterate[] [the party's] original

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arguments," the report should be reviewed only for cleat error. Walker v. Vaughan, 216 F. Supp. 2d
290, 292 (S.D.N.Y. 2002) (quoting Barratt v. Joie,

o. 96 Civ. 0324 (LTS) (THK), 2002 WL

335014, at *1 (S.D.N.Y. Mar. 4, 2002»; accord Cart gena v. Connelly, No. 06 Civ. 2047 (LTS)
(GWG), 2008 WL 2169659, at * 1 (S.D.N.Y. May 23, 2 08).
To the extent that Plaintiffs letter dated Februa,ry 27,2013 is construed as an objection to
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the Report, the objection is neither specific nor non-copclusory. Therefore, the Court reviews the
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Report's recommendation for clear error. After revie ing the record, the Court finds that Judge
Netburn's well-reasoned Report is not facially erroneou . Accordingly, the Court adopts the Report
in its entirety and, for the reasons set forth therein, D.ENIES Plaintiffs motion for a preliminary
injunction concerning his visitation rights.

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Because Plaintiffs request was never docketed as a

"Motion" on ECF, there is no motion to terminate. I Nonetheless, the Clerk of the Court is
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respectfully requested to note that this Order disposes lof the request for a preliminary injunction
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made by Plaintiff at Doc. Nos. 16 and 17.

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SO ORDERED.

Dated:

April 10,2013
New York, New York

RD J. SULLIVAN
ED STATES DISTRICT JUDGE

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cc:

Bishop Frank Best

131-19 Farmers Blvd.

Queens, NY 11434

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