Opinion
3:13-CV-1112 (LEK/DEP)
12-20-2013
VERNON H. ANDREWS, Plaintiff, v. AMUSEMENTS OF AMERICA; et al., Defendants.
ORDER
This matter comes before the Court following a Report-Recommendation filed on November 18, 2013, by the Honorable David E. Peebles, U.S. Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 5 ("Report-Recommendation"). Judge Peebles recommended that Plaintiff's Complaint be dismissed without prejudice pursuant to 28 U.S.C. § 1915(e). See generally Report-Rec.; Dkt. No. 1 ("Complaint").
A district court must review de novo any objected-to portions of a magistrate judge's report-recommendation or specific proposed findings or recommendations therein and "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); accord FED. R. CIV. P. 72(b); see also Morris v. Local 804, Int'l Bhd. of Teamsters, 167 F. App'x 230, 232 (2d Cir. 2006); Barnes v. Prack, No. 11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013). 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, 2013 WL 1121353, at *1; 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 has filed Objections to the Report-Recommendation. Dkt Nos. 6; 6-1. ("Objections"). The Objections fail to respond in any meaningful or intelligible way to the grounds upon which the Report-Recommendation recommended dismissal of the Complaint: (1) the Complaint's failure to allege facts suggesting that any of the Defendants were acting under color of state law or were personally involved in the deprivation of Plaintiff's rights; and (2) the "largely unintelligible" nature of the Complaint. See generally Report-Rec.; Objs. The Court therefore reviews the Report-Recommendation for clear error. After a thorough review of the Report-Recommendation and the record, the Court has determined that the Report-Recommendation is not subject to attack for clear error or manifest injustice.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 5) is APPROVED and ADOPTED in its entirety; and it is further
ORDERED, that Plaintiff, if he wishes to pursue this action, must file an amended complaint that remedies the deficiencies identified by the Report-Recommendation and complies with the Federal Rules of Civil Procedure and the Local Rules within thirty (30) days of the filing date of this Order; and it is further
ORDERED, that if Plaintiff fails to timely file an amended complaint as directed above, the Clerk of the Court shall enter judgment indicating that the Complaint (Dkt. No. 1) is DISMISSED with prejudice without further order of the Court pursuant to 28 U.S.C. § 1915(e) for failure to state a claim upon which relief may be granted. In that event, the Clerk of the Court is directed to close this case; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order upon the parties to this action.
IT IS SO ORDERED. DATED: December 20, 2013
Albany, New York
____________________________
Lawrence E. Kahn
U.S. District Judge