Summary
dismissing as barred by res judicata claims that had been previously dismissed on initial review pursuant to 28 U.S.C. § 1915(e)(B)
Summary of this case from Sentementes v. LamontOpinion
6:15-CV-1132 (GTS/TWD)
10-30-2015
BRIAN SCOTT ORR, Plaintiff, v. UNITED STATES AIR FORCE, Air Force Research Laboratory; UNITED STATES DEPARTMENT OF JUSTICE, FBI National Security Division; and CHESTER JOHN MACIAG, Air Force Special Projects Chief, Defendants.
APPEARANCES: BRIAN SCOTT ORR, 25959039 Plaintiff, Pro Se LOMPOC F.C.I. Inmate Mail/Parcels 3600 Guard Road Lompoc, California 93436-2705
APPEARANCES: BRIAN SCOTT ORR, 25959039
Plaintiff, Pro Se
LOMPOC F.C.I.
Inmate Mail/Parcels
3600 Guard Road
Lompoc, California 93436-2705
GLENN T. SUDDABY, Chief United States District Judge DECISION and ORDER
Currently before the Court, in this civil rights action filed pro se by Brian Scott Orr ("Plaintiff") against the above-captioned entities and individual ("Defendants"), are (1) United States Magistrate Judge Therese Wiley Dancks' Report-Recommendation recommending that this action be sua sponte dismissed, with prejudice, for failure to state a claim upon which relief can be granted on the grounds that it is barred under the doctrine of res judicata, and (2) Plaintiff's one-page Objection to the Report-Recommendation. (Dkt. Nos. 4, 5.)
When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed. R. Civ. P. 72(b)(2); 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." N.D.N.Y. L.R. 72.1(c). When performing such a de novo review, "[t]he judge may . . . receive further evidence. . . ." 28 U.S.C. § 636(b)(1).
See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Although Mario filed objections to the magistrate's report and recommendation, the statement with respect to his Title VII claim was not specific enough to preserve this claim for review. The only reference made to the Title VII claim was one sentence on the last page of his objections, where he stated that it was error to deny his motion on the Title VII claim '[f]or the reasons set forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.' This bare statement, devoid of any reference to specific findings or recommendations to which he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title VII claim.").
When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999). Similarly, when no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. 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." Id.
See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) ("I am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection is made, so long as those sections are not facially erroneous.") (internal quotation marks and citations omitted). --------
After conducing the 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).
Here, liberally construed, Plaintiff's Objection asserts only three specific challenges to Magistrate Judge Dancks' Report-Recommendation: (1) that Plaintiff's claim in the current action is not identical to his claim in the prior action; (2) that the dismissal of his first claim was not based on the merits of his claim; and (3) that the dismissal of his first claim (based on the ground of frivolousness) was not permissible, and the dismissal of his current claim (based on the doctrine of res judicata) is not permissible, because both claims are supported by medical evidence. (Dkt. No. 5.)
After carefully reviewing the relevant filings in this action, the Court can find no error in the challenged portions of the Report-Recommendation, nor any clear error in the remaining portions of the Report-Recommendation: Magistrate Judge Dancks employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the Court accepts and adopts the Report-Recommendation for the reasons stated therein. (Dkt. No. 4.) To those reasons, the Court would add only that it has carefully reviewed Plaintiff's Complaint in the first action and his Complaint in this action, and finds them to be virtually identical. Moreover, the Court finds that the dismissal of Plaintiff's first action was indeed on the merits.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Dancks' Report-Recommendation (Dkt. No. 4) is ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED. Dated: October 30, 2015
Syracuse, New York
/s/_________
Hon. Glenn T. Suddaby
Chief, United States District Judge