Carr v. Gerwitz

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

GERRY CARR and PAULETTE KLEIN,

Plaintiffs,

v. 1:24-cv-01069 (AMN/DJS)

PHILIP J. GERWITZ, et al.,

Defendants.

APPEARANCES: OF COUNSEL:

GERRY CARR #18714 Albany County Correctional Facility 840 Albany Shaker Road Albany, New York 12211 Plaintiff, pro se

PAULETTE KLEIN P.O. Box 12252 Albany, New York 12212 Plaintiff, pro se

Hon. Anne M. Nardacci, United States District Judge:

ORDER I. INTRODUCTION On August 30, 2024, pro se plaintiffs Gerry Carr and Paulette Klein (“Plaintiffs”) commenced this action pursuant to 42 U.S.C. § 1983 (“Section 1983”) against individuals at the Colonie Police Department and others (“Defendants”). Dkt. No. 1 (“Complaint”). Plaintiff Carr sought and was granted leave to proceed in forma pauperis. Dkt. Nos. 2, 4. This matter was referred to United States Magistrate Daniel J. Stewart, who reviewed the Complaint pursuant to 28 U.S.C. § 1915(e) and, on September 20, 2024, recommended that the Complaint be dismissed with leave to amend. Dkt. No. 5 (“Report-Recommendation”). Magistrate Judge Stewart advised that pursuant to 28 U.S.C. § 636(b)(1), the parties had fourteen days within which to file written objections and that failure to object to the Report- Recommendation within fourteen days would preclude appellate review. Id. at 9–10.1 No party has filed objections to the Report-Recommendation and the time for filing objections has expired.

For the reasons set forth below, the Court adopts the Report-Recommendation in its entirety. II. STANDARD OF REVIEW This Court reviews de novo those portions of a magistrate judge’s report-recommendation that have been properly preserved with a specific objection. 28 U.S.C. § 636(b)(1)(C). “To be ‘specific,’ the objection must, with particularity, ‘identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection.’” Petersen v. Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012) (alteration in original) (quoting N.D.N.Y. Local Rule 72.1(c)). If no specific objections have been filed, this Court reviews a

magistrate judge’s report-recommendation for clear error. See Petersen, 2 F. Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b) advisory committee’s notes to 1983 addition). Similarly, when a party files “[g]eneral or conclusory objections, or objections which merely recite the same arguments [previously] presented to the magistrate judge,” the district court reviews a magistrate judge’s report-recommendations for clear error. O’Diah v. Mawhir, No. 08-cv-322, 2011 WL 933846, at *1 (N.D.N.Y. Mar. 16, 2011) (citations omitted); accord Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (a “statement, devoid of any reference to specific findings or

1 Citations to docket entries utilize the pagination generated by CM/ECF, the Court’s electronic filing system, and not the documents’ internal pagination. recommendations to which [the plaintiff] objected and why, and unsupported by legal authority, was not sufficient to preserve” a claim); Petersen, 2 F. Supp. 3d at 228–29 & n.6 (collecting cases). “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.’” Dezarea W. v. Comm’r of Soc. Sec., No. 21-cv-01138, 2023 WL 2552452, at *1 (N.D.N.Y. Mar. 17, 2023)

(quoting Canady v. Comm’r of Soc. Sec., No. 17-cv-0367, 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14, 2017)). “[I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to ‘formal pleadings drafted by lawyers.’” Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations omitted). The Second Circuit has held that courts are obligated to “make reasonable allowances to protect pro se litigants” from inadvertently forfeiting legal rights merely because they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). That said, “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 . . . .” Machicote v. Ercole, No. 06-cv-13320, 2011 WL 3809920, at *2, (S.D.N.Y. Aug. 25, 2011) (citation omitted); accord Caldwell v. Petros, No. 22-cv-567, 2022 WL 16918287, at *1 (N.D.N.Y. Nov. 14, 2022). After appropriate review, “the court may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). III. DISCUSSION Because no party has filed any objections to the Report-Recommendation, the Court reviewed the Report-Recommendation for clear error. Magistrate Judge Stewart found that the precise nature of Plaintiffs’ claims in the Complaint was unclear; that the factual allegations did not support an equal protection violation or a claim under Section 1983; and that the Complaint was not signed by either Plaintiff, in violation of Rule 11(a) of the Federal Rules of Civil Procedure. Dkt. No. 5 at 5–8. As a result, Magistrate Judge Stewart recommended that the Complaint be dismissed with leave to amend. Id. at 8–9. The Court agrees with Magistrate Judge Stewart’s findings and recommendations for the reasons

set forth in the Report-Recommendation. Having reviewed the Report-Recommendation for clear error, and found none, the Court adopts the Report-Recommendation in its entirety. IV. CONCLUSION Accordingly, the Court hereby ORDERS that the Report-Recommendation, Dkt. No. 5, is ADOPTED in its entirety; and the Court further ORDERS that the Complaint, Dkt. No. 1, is DISMISSED with leave to amend;2 and the Court further

ORDERS that any amended complaint must be filed within thirty (30) days of the filing date of this Order; and the Court further ORDERS that, if Plaintiffs file a timely amended complaint, it shall be referred to Magistrate Judge Stewart for review; and if Plaintiffs fail to file a timely amended complaint, the Clerk is directed to close this case without further order of this Court; and the Court further ORDERS that the Clerk serve a copy of this Order on all parties in accordance with the Local Rules.3

2 As set forth in the Report-Recommendation, any amended pleading must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Dkt. No. 5 at 8–9. 3 The Clerk shall also provide Plaintiffs with copies of all unreported decisions herein. IT IS SO ORDERED. Dated: October 10, 2024 Ove Nerdsreee Albany, New York Anne M. Nardacci U.S. District Judge