Smith v. Bush

Lawrence E. Kahn U.S. District Judge

DECISION AND ORDER

This matter comes before the Court following a Report-Recommendation filed on November 1, 2018, 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. 4 ("Report-Recommendation").

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 objections are timely filed, a court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." § 636(b). However, 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 need review that aspect of a report-recommendation only for clear error. Barnes v. Prack, No. 11-CV-857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306-07, 306 n.2 (N.D.N.Y. 2008), abrogated on other grounds by Widomski v. State Univ. of N.Y. at Orange, 748 F.3d 471 (2d Cir. 2014); see also Machicote v. Ercole, No. 06-CV-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." § 636(b).

No objections were filed in the allotted time period. Docket. Even if the Court were to consider Plaintiff Smith's objection that was filed outside the allotted time period, Dkt. No. 5 ("Objection"), that Objection is so general (it consists of a collection of articles, webpages, and medical records with no explanation of their relevance to any of the Magistrate Judge's findings or conclusions) that the Court still reviews the Report-Recommendation only for clear error. It finds none.

Accordingly, it is hereby:

ORDERED, that the Report-Recommendation (Dkt. No. 4) is APPROVED and ADOPTED in its entirety; and it is further

ORDERED, that the Complaint is DISMISSED in its entirety with prejudice with respect to Plaintiffs Smith and Children Rainbow #s, and it is further

ORDERED, that the Complaint is DISMISSED in its entirety without prejudice with respect to Plaintiffs SLH, AIL, SJH, APH, and PIL; and it is further

ORDERED, that the Clerk of the Court serve a copy of this Order on Plaintiffs in accordance with the Local Rules.

IT IS SO ORDERED. DATED: December 03, 2018

Albany, New York

/s/_________

Lawrence E. Kahn

U.S. District Judge