Opinion
9:13-CV-1172 (LEK/TWD)
07-07-2014
REUBEN LEWIS, Plaintiff, v. STANTON, Defendant.
ORDER
This matter comes before the Court following a Report-Recommendation filed on April 29, 2014, by the Honorable Thérèse Wiley Dancks, U.S. Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 21 ("Report-Recommendation"). Judge Dancks recommends that Defendant's Partial Motion to dismiss for failure to state a claim be granted as to: (1) Plaintiff's claims against Defendant in his official capacity; and (2) Plaintiff's state law claims against Defendant in his personal capacity. Report-Rec. at 9.
Although Defendant did not move for dismissal of Plaintiff's federal law claims against Defendant in his official capacity, Judge Dancks recommends that the Court dismiss these claims sua sponte based on Eleventh Amendment sovereign immunity. Report-Rec. at 6-7 & n.3; see also 28 U.S.C. § 1915(e)(2).
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 filed . . . reviewing courts should review a report and recommendation for clear error." Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006); see also Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) ("As a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point."); Farid v. Bouey, 554 F. Supp. 2d 301, 306 (N.D.N.Y. 2008).
Plaintiff responded to the Report-Recommendation, but did not raise any objections. See Dkt. No. 22. Accordingly, the Court has reviewed the Report-Recommendation for clear error. Having found none, the Report-Recommendation is approved and adopted in its entirety.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 21) is APPROVED and ADOPTED in its entirety; and it is further
ORDERED, that Defendant's Partial Motion (Dkt. No. 13) to dismiss is GRANTED; and it is further
ORDERED, that Plaintiff's (i) federal and state law claims against Defendant in his official capacity, and (ii) state law claims against Defendant in his personal capacity are DISMISSED without leave to amend; and it is further
The Court notes that the New York State Court of Claims is the proper forum for Plaintiff's state law claims against Defendant in his official capacity. See N.Y. CORRECT. LAW § 24(2). Accordingly, although Plaintiff's state law claims against Defendant in his official capacity are dismissed without leave to amend, this dismissal is without prejudice to raising those claims in the New York State Court of Claims.
ORDERED, that Defendant must respond to Plaintiff's 42 U.S.C. § 1983 claim against him in his personal capacity in accordance with the Federal Rules of Civil Procedure; and it is further
ORDERED, that the Clerk serve a copy of this Order upon the parties to this action in accordance with the Local Rules.
IT IS SO ORDERED. DATED: July 07, 2014
Albany, New York
__________
Lawrence E. Kahn
U.S. District Judge