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United States District Court, S.D. New York

June 9, 2005.

ZACK LEWIS, Petitioner,
ABC/DISNEY, Respondent.

The opinion of the court was delivered by: GEORGE DANIELS, District Judge


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.


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