Summary
denying leave to amend where certain claims were dismissed on statute of limitations grounds
Summary of this case from Cosby v. Safeco Ins. Co. of Am.Opinion
5:15-CV-0408 (LEK/ATB)
07-02-2015
MATTHEW J. ROACH, Plaintiff, v. JENNIFER CLARK, et al., Defendants.
ORDER
This matter comes before the Court following a Report-Recommendation filed on April 22, 2015, by the Honorable Andrew T. Baxter, U.S. Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 7 ("Report-Recommendation"). Pro se Plaintiff Matthew J. Roach ("Plaintiff") timely filed Objections. Dkt. No. 9 ("Objections").
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 a party objects to a report-recommendation, "the Court subjects that portion of the report-recommendation to a de novo review." Williams v. Roberts, No. 11-CV-0029, 2012 WL 760777, at *3 (N.D.N.Y. Mar. 7, 2012) (citing FED. R. CIV. P. 72(b)(2) and 28 U.S.C. § 636(b)(1)(C)); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). 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 should review that aspect of a report-recommendation for clear error. 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."). "A [district] judge . . . 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).
Plaintiff objects to the portion of the Report-Recommendation explaining that Plaintiff may not represent his child as a pro se litigant. See Objs. at 2-5; Report-Rec. at 2. The Report-Recommendation states that Plaintiff "may not represent either Ms. Davendorf or A.R.," and therefore reviewed the Complaint only as it applied to Plaintiff. Report-Rec. 2-3. Therefore, A.R.'s Application to proceed in forma pauperis was not approved, because it was improperly filed by Plaintiff, who is not admitted to practice law. See Lattanzio v. COMTA, 481 F.3d 137, 139-40 (2d Cir. 2007); see also 28 U.S.C. § 1654.
The remainder of Plaintiff's Objections merely reiterate allegations made in the Complaint, or are conclusory. See generally Objs. Accordingly, the Court has reviewed the remainder of the Report-Recommendation for clear error and has found none.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 7) is APPROVED and ADOPTED in its entirety; and it is further
ORDERED, that Plaintiff's claims against Defendants Clark, Warren, Snyder, Gonzales, Woodfork, and Onondaga County are DISMISSED without prejudice and with leave to replead pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim; and it is further
ORDERED, that Plaintiff's claims against Defendants Pirro-Bailey, White, Jennifer "Doe," John "Doe," and Sutkowy are DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); and it is further
ORDERED, that Plaintiff's Motion (Dkt. No. 1) for a temporary restraining order is DENIED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order on Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED. DATED: July 02, 2015
Albany, New York
/s/_________
Lawrence E. Kahn
U.S. District Judge