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DeViver v. Bardot

October 30, 2009

JACK VAN DEVIVER, PLAINTIFF,
v.
IRENE BARDOT, PROSECUTOR, NEW YORK STATE ATTORNEY GENERAL'S OFFICE; ELLIOT SPITZER; JUDGE WALTER HAFNER, OSWEGO COUNTY COURT; AND SALVATORE J. PIEMONTE, ATTORNEY, DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently pending before the Court in this pro se prisoner civil rights action filed by Jack Van DeViver ("Plaintiff") are (1) Magistrate Judge David R. Homer's Report-Recommendation recommending that Plaintiff's Complaint be dismissed in its entirety (Dkt. No. 8); and (2) Plaintiff's Amended Complaint (Dkt. No. 10, Part 1). For the reasons set forth below, Plaintiff's Amended Complaint is accepted for filing; Magistrate Judge Homer's Report-Recommendation is accepted and adopted in its entirety; and Plaintiff's Amended Complaint is sua sponte dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A.

I. BACKGROUND

Plaintiff filed his Complaint on August 12, 2009. (Dkt. No. 1.) Liberally construed, Plaintiff Complaint alleges that his constitutional rights were violated in the following ways: (1) he was coerced into entering a guilty plea; (2) Defendant Bardot refused Plaintiff's cooperation in a controlled drug transaction; (3) Defendant Piemonte provided ineffective assistance as counsel; and (4) Defendant Spitzer used Plaintiff's conviction to bolster his record of convictions while acting Attorney General. (Dkt. No. 1.)

On September 9, 2009, Magistrate Judge Homer issued a Report-Recommendation recommending the sua sponte dismissal of Plaintiff's Complaint in its entirety for failure to state a claim and lack of subject-matter jurisdiction pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A . (Dkt. No. 8.) Plaintiff's Objections to the Report-Recommendation were due on September 26, 2009.*fn1

Rather than file any Objections, on October 5, 2009, Plaintiff filed a document that he requested be construed as an Amended Complaint. (Dkt. No. 10, Part 1.) In addition, Plaintiff filed a request that the Court assign him counsel (Dkt. No. 1, Parts 1-5.) which was denied by Magistrate Judge Homer on 10/22/09. (Dkt No. 12)

In his Amended Complaint, Plaintiff attempts to correct the pleading deficiencies identified in Magistrate Judge Homer's Report-Recommendation by providing additional details regarding his claims that (1) he was set up by police officers to perform drug buys which resulted in an unlawful conviction for cocaine possession, (2) he was coerced into entering a guilty plea when he was not of sound mind, and (3) his retained counsel was ineffective. (See generally Dkt. No. 10.)

II. STANDARD OF REVIEW

When specific objections are made to a magistrate judge's report-recommendation, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).*fn2

When only general objections are made to a magistrate judge's report-recommendation (or the objecting party merely repeats the allegations of his pleading), the Court reviews for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999).*fn3 Similarly, when a party makes no objection to a portion of a report-recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducting the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).

III. ANALYSIS

A. Plaintiff's Complaint

As stated above in Part I of this Decision and Order, rather than file any Objections to Magistrate Judge Homer's Report-Recommendation, on October 5, 2009, Plaintiff filed a document that he requested be construed as an Amended Complaint. (Dkt. No. 10, Part 1.)

Pursuant to Fed. R. Civ. P. 15, "[a] party may amend its pleading once as a matter of course . . . before being served with a responsive pleading." Fed. R. Civ. P. 15(a). Generally, for reasons of judicial economy, the Court is loathe to permit a party to change his allegations after one of the Court's magistrate judges has expended the time and effort to review the sufficiency of those allegations.*fn4 However, the Court is mindful of the rather absolute nature of the right created by Fed. R .Civ. 15(a), and the special status that Plaintiff enjoys as a pro se civil rights litigant. Moreover, the Court is mindful that Plaintiff's ...


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