Opinion
04 Civ. 7316 (KMW).
March 27, 2007
MEMORANDUM OPINION AND ORDER
Pro se Plaintiff Crystal Spruill brings this action pursuant to 42 U.S.C. § 1983, alleging that her constitutional rights were violated by the removal of her children by the Administration for Children's Services, her arrest, and the placement of her children in foster care. Defendants have moved to dismiss for lack of subject-matter jurisdiction and failure to state a claim on which relief can be granted. Fed.R.Civ.P. 12(b)(1), (6). By Report and Recommendation dated January 23, 2007 (the "Report"), Magistrate Judge James C. Francis IV recommended that the motion to dismiss be (1) granted with respect to Defendants Awotoye, Carson, Davis, Doe, Levy, Oboh, Rivera, Sacks, Scoppetta, Tripathi, and Watson, and (2) denied with respect to Defendants McDonald and Wise. Plaintiff has filed a written objection to the former recommendation. For the reasons stated below, the Court agrees with the Report, and the motion to dismiss is granted in part and denied in part.
DISCUSSION A. The Entire Report Should Be Reviewed for Clear Error
Plaintiff objects to the recommendation that the motion to dismiss be granted in part. Her objection reads, in full, "Plaintiff objects to the recommendation that defendants['] motion to dismiss be granted. Plaintiff relies on the issu[es] raised in her Complaint and Amended Complaint, and all Cross-Motions submitted on behalf of plaintiff." (Objection to Report and Recommendation 2.)
Although Plaintiff's "Objection to Report and Recommendation" is two pages, the rest of the document asks the Court to adopt the portion of the Report recommending that the motion to dismiss be denied in part, a recommendation to which neither party objects.
Defendants construe as an objection Plaintiff's statement that "Defendants were well aware of their expired document when they informed arresting officers that they in fact had an order of protection against plaintiff." (Objection to Report and Recommendation 2.) This statement supports the Report's conclusion that the claim against Officers McDonald and Wise should not be dismissed; it is not an objection to the Report's conclusion that the other claims should be dismissed. (See Report 19.)
This objection is not "specific," and the Report should therefore be reviewed for clear error. The Court must make a de novo determination of any portion of a report and recommendation to which a party files "specific" written objections. Fed.R.Civ.P. 72(b); see also 28 U.S.C. § 636(b)(1). However, the Court should review a report for clear error if a party's written objections are "`perfunctory'" responses that merely restate the arguments set forth in the original petition. Edwards v. Fischer, 414 F. Supp. 2d 342, 346 (S.D.N.Y. 2006) (quoting Veaa v. Artuz, No. 97 Civ. 3775 (LTS) (JCF), 2002 U.S. Dist. LEXIS 18270, at *3 (S.D.N.Y. Sept. 30, 2002)); accord Klawitter v. Chater, No. 93-CV-0054E(H), 1995 U.S. Dist. LEXIS 16162, at *1-2 (W.D.N.Y. Oct. 18, 1995); Vargas v. Keane, No. 93 Civ. 7852 (MBM), 1994 U.S. Dist. LEXIS 17701, at *3-4 (S.D.N.Y. Dec. 12, 1994). Plaintiff's objection is of the latter variety, because it is not specific and because it makes no new argument why the Report's conclusions are wrong, instead relying exclusively on the arguments in Plaintiff's previously submitted pleadings and memoranda.
Neither party has objected to the portion of the Report recommending that the motion to dismiss be denied in part. The Court should therefore review this portion of the Report for clear error. Fed.R.Civ.P. 72(b) advisory committee's note; see also Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985).
B. The Court Agrees with the Report
Magistrate Judge Francis made the following recommendations: (1) Plaintiff's claims against Harold Levy and Nicholas Scoppetta, pursuant to 42 U.S.C. § 1983, should be dismissed because Plaintiff did not allege that Levy and Scoppetta were personally involved in any violation of her constitutional rights. (2) Plaintiff's § 1983 claims against Ms. Watson and Jane Doe should be dismissed as untimely. (3) Plaintiff's due process claims against Florence Awotoye and Chris Sacks should be dismissed as untimely and because they are barred by theRooker-Feldman doctrine. (4) Plaintiff's claims that Mary Carson, Timothy Davis, Catherine Oboh, and Asana Tripathi neglected Plaintiff's children should be dismissed because Plaintiff does not have a constitutional right to adequate care for her children while they were in state custody. (5) Plaintiff's claim against Ramon Rivera should be dismissed for failure to state a claim against him. (6) Plaintiff's false arrest claims against Officer Wise and Officer McDonald should not be dismissed, because Plaintiff meets the standard for equitable tolling of the statute of limitations, and because Plaintiff could potentially state a claim against the officers for arrest without probable cause.
The Court finds Magistrate Judge Francis's recommendations to be thoughtful and well reasoned. The Report is free of clear error on the face of the record. The Court therefore accepts and adopts the Report.
CONCLUSION
For the reasons stated above, the motion to dismiss is (1) GRANTED with respect to Defendants Florence Awotoye, Mary Carson, Timothy Davis, Jane Doe, Harold Levy, Catherine Oboh, Ramon Rivera, Chris Sacks, Nicholas Scoppetta, Asana Tripathi, and Ms. Watson, and (2) DENIED with respect to Defendants Officer McDonald and Officer Wise.
SO ORDERED.