Chinn v. The Elmwood Franklin School et al

Filing 211

AMENDED DECISION AND ORDER: Earlier today, the Court entered a Decision and Order 210 adopting Judge McCarthy's R&R 202 and dismissing the entire case with prejudice. This was an oversight -- Judge McCarthy's R&R recommended dismissal against the Elmwood Franklin School and the individual Elmwood Franklin Defendants only, not the Buffalo Public Schools District. Accordingly, this Amended Order accepts and adopts Judge McCarthy's R&R 202 in its entirety and Plaintiff' ;s claims against the Elmwood Franklin School and the individual Elmwood Franklin Defendants are DISMISSED WITH PREJUDICE. The Clerk of Court is directed to terminate those Defendants as parties to the case -- the Buffalo Public Schools District is the only remaining Defendant. The Clerk of Court is also directed to restore the Buffalo Public Schools District's Motion for Summary Judgment 123 and non-party Jeremy Jacobs's Motion to Quash 198 , which were terminated when the Court entered the prior order dismissing the entire case.SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 11/29/2018. A copy of this NEF and Decision and Order have been mailed to the Plaintiff. (AFM)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SHELLONNEE B. CHINN,

Plaintiff,
v.

Case # 15-CV-938-FPG
AMENDED DECISION AND ORDER

THE ELMWOOD FRANKLIN SCHOOL, et al.,

Defendants.

INTRODUCTION
Pro se Plaintiff Shellonnee B. Chinn brings this case against the Buffalo Public Schools
District and the Elmwood Franklin School and many of its employees and trustees (“the individual
Elmwood Franklin Defendants”). ECF No. 1. She alleges that Defendants discriminated and
retaliated against her during her employment as a teacher. Id. The Court referred this case to
United States Magistrate Judge Jeremiah J. McCarthy for pretrial matters and to hear and report
upon dispositive motions for the Court’s consideration pursuant to 28 U.S.C. §§ 636(b)(1)(B), (C).
ECF Nos. 72, 159.
On November 1, 2018, Judge McCarthy issued a report and recommendation (“R&R”) in
which he recommends that the Court sua sponte dismiss this action against the Elmwood Franklin
School and the individual Elmwood Franklin Defendants for Plaintiff’s repeated failure to comply
with Court orders and her “prolonged and vexatious obstruction of discovery.” ECF No. 202 at 915. Plaintiff filed objections to the R&R on November 19, 2018. ECF No. 207.
On November 29, 2018, the Court entered a Decision and Order adopting Judge
McCarthy’s R&R and dismissing the entire case with prejudice. ECF No. 210. This was an

oversight—Judge McCarthy’s R&R recommended dismissal against the Elmwood Franklin
School and the individual Elmwood Franklin Defendants only, not the Buffalo Public Schools
District. Accordingly, the Court issues this Amended Order that dismisses Plaintiff’s claims as to
the Elmwood Franklin School and the individual Elmwood Franklin Defendants only.
LEGAL STANDARD
When a party makes specific objections to portions of a magistrate judge’s R&R, the
district court reviews those portions de novo. Loc. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(C). A
specific objection must “specifically identify” the portions of the R&R to which the party objects
and a “basis for each objection,” and the objections must “be supported by legal authority.” Loc.
R. Civ. P. 72(b). A party who files objections to an R&R “must include . . . a written statement
either certifying that the objections do not raise new legal/factual arguments, or identifying the
new arguments and explaining why they were not raised to the magistrate judge.” Id. at 72(c).
Where a party only generally objects and does not make a “specific written objection” to
portions of the R&R, “the district court may adopt those portions, as long as the factual and legal
bases supporting the findings and conclusions set forth in those sections are not clearly erroneous
or contrary to law.” Cordero v. Miller, No. 1:15-CV-383-JJM-MAT, 2018 WL 3342573, at *4
(W.D.N.Y. July 9, 2018), reconsideration denied 2018 WL 4846272 (W.D.N.Y. Oct. 5, 2018)
(quotation marks and citations omitted).
After conducting the appropriate review, the district court “may accept, reject, or modify,
in whole or in part,” the magistrate judge’s R&R. 28 U.S.C. § 636(b)(1)(C).
DISCUSSION
Although Plaintiff’s objections cite Local Rule 72(b), her submission does not comply with
its requirements. The entirety of Plaintiff’s objections are as follows:

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A de novo review of the Magistrate’s [R&R], in conjunction with a review of the
complete record in this case, supports the Court rejecting the [R&R] in its entirety
on the basis [that] the factual determinations [are] unfounded and the dismissal of
the action is totally unsupported by the record in this case.
The delay by the Magistrate in issuing discovery ruling(s) against the Elmwood
Franklin defendants, from the start of discovery, has rendered Plaintiff’s efforts for
a meaning[ful] opportunity to develop evidence . . . futile.
Plaintiff objects and take[s] exception to the [R&R] in its entirety and cite[s] the
record in this case, particularly those parts of the record commencing with the
approximately six months of discovery.
ECF No. 207 at 1-2.
Plaintiff’s objections are non-specific and lack any basis or supporting legal authority in
violation of Local Rule 72(b). She also failed to submit the requisite certification pursuant to Local
Rule 72(c).1 “Failure to abide by the Local Rules constitutes reason enough to dismiss [Plaintiff]’s
objections[,] as courts have broad discretion in interpreting and applying their Local Rules.”2
Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y.
1992) (citations omitted) (dismissing defendant’s objections to an R&R for failing to comply with
the Local Rules).
Notwithstanding the above, the Court considered Plaintiff’s general objections and
reviewed Judge McCarthy’s R&R for clear error, and it finds no clear error in his findings or
recommendations or on the face of the record. See Boice v. M+W U.S., Inc., 130 F. Supp. 3d 677,

Pro se litigants must “become familiar with, follow, and comply” with the Local Rules (see Loc. R. Civ. P. 5.2(i)),
and Judge McCarthy’s R&R specifically cited and quoted Local Rules 72(b) and (c). ECF No. 202 at 19.
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The Court recognizes that Plaintiff is proceeding pro se and that it “should be particularly solicitous of pro se litigants
who assert civil rights claims,” Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) (citation omitted), but it
nonetheless declines to excuse Plaintiff’s improper objections. It is Plaintiff’s “duty to pinpoint those portions of the
[R&R] that the district court must specifically consider. This rule facilitates the opportunity for district judges to
spend more time on matters actually contested and produces a result compatible with the purposes of the Magistrates
Act.” Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (citation
omitted). Moreover, a pro se litigant is entitled to less deference when she “is experienced in litigation and familiar
with the procedural setting presented,” Tracy, 623 F.3d at 102, like the Plaintiff is here.
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686 (N.D.N.Y. 2015) (“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.”)
(internal quotation marks omitted). Accordingly, the Court adopts the R&R in its entirety.
CONCLUSION
The Court accepts and adopts Judge McCarthy’s R&R (ECF No. 202) in its entirety and
Plaintiff’s claims against the Elmwood Franklin School and the individual Elmwood Franklin
Defendants are DISMISSED WITH PREJUDICE.
The Clerk of Court is directed to terminate those Defendants as parties to the case—the
Buffalo Public Schools District is the only remaining Defendant. The Clerk of Court is also
directed to restore the Buffalo Public Schools District’s Motion for Summary Judgment (ECF No.
123) and Jeremy Jacobs’s Motion to Quash (ECF No. 198)3, which were terminated when the
Court entered the prior order dismissing the entire case.
IT IS SO ORDERED.
Dated: November 29, 2018
Rochester, New York

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______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

Jeremy Jacobs is a non-party who moved to quash Plaintiff’s subpoena seeking deposition testimony from him.

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