Witham v. New York State et al

Filing 9

ORDER ADOPTING 4 Memorandum and Recommendations. The plaintiff's complaint is DISMISSED. The clerk is directed to enter judgment accordingly and close the file. Signed by US District Judge Terrence W. Boyle on 10/23/2013. Copy mailed to pro se plaintiff via US Mail. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
5:13-CV-611-BO
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JUDSON WITHAM,
Plaintiff,
v.

STATE OF NEW YORK,
et al.,
Defendants.

ORDER

This matter is before the Court on the Memorandum and Recommendation ("M&R") of United
States Magistrate Judge William A Webb [DE 4]. The Court ADOPTS the M&R.

BACKGROUND
Plaintiffs complaint references the Universal Declaration on Human Rights, The United States
Constitution, and the North Carolina Constitution and claims that defendants, State ofNew York; New
York Department of Environmental Conservation; International Paper Co.; Warren County, New York;
Lake George Park Commission; and Town ofTiconderoga, New York, manipulated Lake George water
levels through their operation of the Lake George Dam. It further alleges that industrial and municipal
sewage was flushed into Ticonderoga Bar and Lake Champlain. As a result of these acts, plaintiff
contends his family's marina was destroyed and seeks, inter alia, at least $200 million in damages.
Magistrate Judge Webb granted the plaintiffs application to proceed in forma pauperis. Upon frivolity
review, Magistrate Judge Webb found that plaintiffs complaint failed to satisfy the minimum notice
standard articulated in Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) and Bell At/. Corp. v. Twombley,
550 U.S. 544, 570 (2007). Magistrate Judge Webb also found that the complaint failed to articulate the
"minimum contacts" the defendants have with this forum state so that the exercise of personal jurisdiction
comports with due process. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Plaintiff filed an
objection to the M&R on September 16, 2013.

DISCUSSION

A district court is required to review an M & R de novo if the plaintiff specifically objects to it or
in cases of plain error. 28 U.S.C. § 636(b)(l)(B); Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The
district court is only required to make a de novo determination of those specific findings to which the
plaintiff has actually objected. See Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983).
Here, the plaintiff has objected mostly to non-material findings by Magistrate Judge Webb. Such
objections include: whether plaintiff alleged that chunks of ice and chemicals were dumped into Lake
George from Lake Champlain; whether Magistrate Judge Webb properly characterized the complaint as
rambling; and whether defendants are immune. These objections are non-material, and Magistrate Judge
Webb did not find that any of the defendants were immune. Plaintiff also objects that Magistrate Judge
Webb applied an improper pleading standard, but plaintiff fails to cite the controlling Twombley and Iqbal
cases. This Court finds that the Magistrate Judge applied the proper pleadings standard in conducting his
frivolity review. Further, plaintiff fails to object to the finding that he failed to adequately allege
"minimum contacts" between the defendants and this forum state. Accordingly, the Court adopts
Magistrate Judge Webb's M&R, and plaintiffs complaint is dismissed in its entirety.
CONCLUSION

The Court ADOPTS the Magistrate Judge's M & R [DE 4]. Plaintiffs complaint is DISMISSED.
The clerk is directed to enter judgment accordingly and close the file.

SO ORDERED.
This the ~ day of October, 2013.