Black v. Vitello et al

Filing 30

DECISION AND ORDER granting 9 Defendants' crossmotion to dismiss; dismissing 8 Plaintiff's motion for a hearing; and dismissing 22 Plaintiff's motion for judgment. The Clerk of Court is instructed to close this case as dismissed with prejudice. Signed by Hon. John L. Sinatra, Jr. on 4/6/2020. (KLH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Sylvia Black,
Plaintiff,
v.

17-cv-393-JLS-LGF

Peace Office Christine Vitello, et al.,
Defendants.
DECISION AND ORDER
On May 9, 2017, pro se Plaintiff Sylvia Black commenced this action under 42
U.S.C. § 1983. Dkt. 1. On April 13, 2018, this Court referred this case to United
States Magistrate Judge Leslie G. Foschio for all proceedings under 28 U.S.C. §
636(b)(1)(A) and (B). Dkt. 11. On August 14, 2017, Plaintiff moved for a pretrial
hearing or scheduling conference. Dkt. 8. On August 25, 2017, Defendants
responded and cross-moved to dismiss the complaint for lack of personal jurisdiction
based upon improper service. Dkt. 9. Plaintiff responded on May 2, 2018. Dkt. 13.
Defendants replied on May 31, 2018. Dkt. 14. Plaintiff filed a second response to
Defendants’ crossmotion on June 12, 2018. Dkt. 15.
On March 18, 2019, Judge Foschio issued a Report and Recommendation
(“R&R”) finding that Defendants’ motion should be granted and that Plaintiff’s
motion should be dismissed as moot. Dkt. 18. Plaintiff filed objections to the R&R
on March 26, 2019 (Dkt. 20), and again on March 28, 2019 (Dkt. 21), both times
realleging her substantive complaints, stating that she “served Defendant[s] within
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the legal ramifications of the Law” (Dkts. 20 and 21, at 3), and asserting that
Defendants “did not ask for a dismissal on the basis of alleged improper service”
(Dkts. 20 and 21, at 3). Defendants responded to the objections on April 2, 2019,
documenting their requests for dismissal based on lack of personal jurisdiction
arising from Plaintiff’s improper service. Dkt. 19. Plaintiff filed a motion for
judgment on April 4, 2019 (Dkt. 22), to which Defendants responded on April 16,
2019 (Dkt. 23).
A district court may accept, reject, or modify the findings or recommendations
of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). A district
court must conduct a de novo review of those portions of a magistrate judge’s
recommendation to which objection is made. 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b)(3).
This Court has carefully reviewed the R&R, the record in this case, the
objection and response, and the materials submitted by the parties. Based on that
de novo review, the Court accepts and adopts Judge Foschio’s recommendation to
grant Defendants’ crossmotion to dismiss and to dismiss Plaintiff’s motion for a
hearing as moot. Plaintiff’s motion for judgment (Dkt. 22), which was filed after the
R&R was issued and after Plaintiff had twice objected to the R&R, is also dismissed
as moot.
For the reasons stated above and in the Report and Recommendation,
Defendants’ crossmotion to dismiss (Dkt. 9) is GRANTED and Plaintiff’s motion for
a hearing (Dkt. 8) is DISMISSED as moot. Plaintiff’s motion for judgment (Dkt. 22)

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is also DISMISSED as moot. The complaint (Dkt. 1) is dismissed; the Clerk of
Court is instructed to close this case as dismissed with prejudice.
SO ORDERED.
Dated:

April 6, 2020
Buffalo, New York
s/John L. Sinatra, Jr.
JOHN L. SINATRA, JR.
UNITED STATES DISTRICT JUDGE

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