Opinion
8:20-CV-0721 (GTS/CFH)
01-18-2022
STEPHEN KELLY, Plaintiff, v. JEFFREY M. GUZY, Defendant.
STEPHEN KELLY, 18-A-3202 Plaintiff, Pro Se.
STEPHEN KELLY, 18-A-3202 Plaintiff, Pro Se.
DECISION AND ORDER
GLENN T. SUDDABY, Chief United States District Judge
Currently before the Court, in this pro se civil rights action filed by Stephen Kelly (“Plaintiff”) against Jeffrey M. Guzy (“Defendant”), is United States Magistrate Judge Christian F. Hummel's Report-Recommendation reviewing the pleading sufficiency of Plaintiff's Amended Complaint (Dkt. No. 6), and recommending that any claims asserted therein against Judge Carter be dismissed with prejudice as barred by the doctrine of judicial immunity, that Plaintiff's Section 1983 malicious prosecution claim be dismissed without prejudice, and that his Fourth Amendment false arrest claim survive the Court's sua sponte review. (Dkt. No. 8.)
Plaintiff has not filed an Objection to the Report-Recommendation, and the deadline by which to do so has expired. (See generally Docket Sheet.) After carefully reviewing the relevant papers herein, the Court can find no clear error in Magistrate Judge Hummel's thorough Report-Recommendation: Magistrate Judge Hummel employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons set forth therein.
When no objection is made to a report-recommendation, the Court subjects that 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 omitted).
ACCORDINGLY, it is
ORDERED that Magistrate Judge Hummel's Report-Recommendation (Dkt. No. 8) is ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that, to the extent that Plaintiff's Amended Complaint (Dkt. No. 6) attempts to assert any claims against Judge Carter, those claims are sua sponte DISMISSED
with prejudice for failure to state a claim as barred by the doctrine of judicial immunity; and it is further
The Court notes that, at least in the Second Circuit, a dismissal based on the doctrine of judicial immunity arises under Fed.R.Civ.P. 12(b)(6) (which permits the dismissal to be with prejudice) and not Fed.R.Civ.P. 12(b)(1) (which permits the dismissal to be merely without prejudice). See Butcher v. Wendt, 975 F.3d 236, 241 (2d Cir. 2020) (“Because Butcher's claims against Justice Farneti are barred by absolute judicial immunity, they were correctly dismissed under Rule 12(b)(6).”).
ORDERED that Plaintiff's Section 1983 malicious prosecution claim in his Amended Complaint is DISMISSED without prejudice to refiling during the pendency of this action upon a successful motion to amend pursuant to Fed.R.Civ.P. 15 and Local Rule 15.1; and it is further
ORDERED that Plaintiffs Fourth Amendment false arrest claim SURVIVES the Court's sua sponte review of his Amended Complaint; and it is further
ORDERED that the case is returned to Magistrate Judge Hummel to address whether service of process is appropriate at this time.