Summary
explaining that individuals sued in their official capacities under the ADA or Rehabilitation Act are "immune from a suit for damages because, pursuant to the Eleventh Amendment of the United States Constitution, state officials are not liable for money damages when sued in their official capacities"
Summary of this case from Davis v. ColladoOpinion
9:13-CV-0795 (LEK/RFT)
09-29-2014
DAVID HARRINGTON, Plaintiff, v. DR. VADLAMUDI; and SANDRA MARTIN SMITH, Defendants.
ORDER
This matter comes before the Court following a Report-Recommendation filed on September 2, 2014, by the Honorable Randolph F. Treece, U.S. Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 28 ("Report-Recommendation").
Within fourteen days after a party has been served with a copy of a magistrate judge's report-recommendation, the party "may serve and file specific, written objections to the proposed findings and recommendations." FED. R. CIV. P. 72(b); L.R. 72.1(c). If no objections are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court need review that aspect of a report-recommendation only for clear error. Chylinski v. Bank of Am., N.A., 434 F. App'x 47, 48 (2d Cir. 2011); Barnes v. Prack, No. 11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306-07 & n.2 (N.D.N.Y. 2008); see also Machicote v. Ercole, No. 06 Civ. 13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011) ("[E]ven 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, such that no party be allowed a second bite at the apple by simply relitigating a prior argument.").
Plaintiff filed a Letter seeking guidance as to the procedure for amending a complaint, but did not object to the Report-Recommendation. Dkt. No. 31. The Court therefore reviews the Report-Recommendation for clear error and finds none.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 28) is APPROVED and ADOPTED in its entirety; and it is further
ORDERED, that Defendants' Motion (Dkt. No. 16) to dismiss Plaintiff's claims under the Americans with Disabilities Act and the Rehabilitation Act is GRANTED; and it is further
ORDERED, that Plaintiff's claims under the Americans with Disabilities Act and the Rehabilitation Act are DISMISSED with leave to amend. If Plaintiff wishes to proceed with these claims, he must file, within thirty (30) days of the filing date of this Order, an amended complaint that remedies the deficiencies identified in the Report-Recommendation; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order on the parties to this action in accordance with the Local Rules.
IT IS SO ORDERED. DATED: September 29, 2014
Albany, New York
/s/__________
Lawrence E. Kahn
U.S. District Judge