United States District Court, S.D. New York
June 9, 2005.
ZACK LEWIS, Petitioner,
The opinion of the court was delivered by: GEORGE DANIELS, District Judge
MEMORANDUM OPINION & ORDER
Pro se plaintiff Zack Lewis commenced this Title VII lawsuit
based on defendant ABC/Disney's decision to discontinue his
employment.*fn1 Defendant moved under Fed.R. Civ. P
12(b)(6) to dismiss the complaint, alleging that plaintiff failed
to file a timely administrative charge with the Equal Employment
Opportunity Commission ("EEOC"). Magistrate Judge Michael H.
Dollinger issued a Report and Recommendation ("Report") wherein
he recommended that the motion to dismiss be granted. In his
Report, Magistrate Judge Dollinger advised the parties that
failure to file timely objections to the Report would constitute
a waiver of those objections and would preclude appellate review.
Defendant did not submit any objections to the Report. Plaintiff,
however, submitted two letters beyond the ten days for filing
timely written objections.
When timely objection has been made to a magistrate judge's
report, the district judge is required to "make a de novo
determination . . . of any portion of the magistrate's
disposition to which specific written objection has been
made . . ." Fed.R.Civ.P. 72(b); see also
28 U.S.C. § 636(b)(1)(C). The district judge is not required to
conduct a de novo hearing on the matter. United States v. Raddatz, 447 U.S. 667, 676 (1980). "It is
sufficient that the district court `arrive at its own,
independent conclusion about those portions of the magistrate's
report to which objection is made . . .'" Nelson v. Smith,
618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985) (quoting Hernandez v.
Estelle, 711 F.2d 619, 620 (5th Cir. 1983)). Thus, the
district court is obligated to "exercise . . . sound judicial
discretion with respect to whether reliance should be placed on
[the magistrate judge's] findings." American Express Int'l
Banking Corp. v. Sabet, 512 F.Supp. 472, 473 (S.D.N.Y. 1981),
aff'd, 697 F.2d 287 (2d Cir. 1982). The district judge may then
accept, reject, or modify, in whole or in part, the findings or
recommendations of the magistrate judge, receive further
evidence, or recommit the matter to the magistrate judge with
additional instructions. Fed.R.Civ.P. 72(b);
28 U.S.C. § 636(b)(1)(C). The district judge may accept the portions of the
magistrate judge's Report to which no specific written objections
are made provided there is no clear error on the face of the
record. See Nelson v. Smith, 618 F. Supp. 1186, 1189
(S.D.N.Y. 1985); see also Heisler v. Kralik,
981 F. Supp. 830, 835 (S.D.N.Y. 1997), aff'd 164 F.3d 618 (2d Cir. 1998).
With respect to those portions of the Report to which plaintiff
and defendant did not specifically object, the Court finds the
record is not facially erroneous. Accordingly, the Court adopts
those portions of the Report.
Pro se plaintiff's March 19, 2004 letter discusses plaintiffs
apparent difficulties with his original lawyer. Although
plaintiff claims that his attorney "never actively seeked out
information," plaintiff offers no specific explanation for his
failure to file a charge with the EEOC within three hundred days
of defendant's alleged discriminatory conduct.
In his May 11, 2004 letter, plaintiff claims that for at least
two years he called the EEOC twice a month regarding his case. However, plaintiff does not
allege that he ever requested a charge form during these calls.
As noted in the Report, plaintiff does not claim that he was ever
denied a charge form or that he ever even attempted to obtain
one. Indeed, the record shows that when he did request a charge
form on December 6, 2000, he received one promptly and was
permitted to file it.*fn2
For the foregoing reasons, this Court adopts the Report and
defendant's motion to dismiss plaintiff's complaint is granted.