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Pettus v. Spokony

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


November 9, 2009

JAMES PETTUS, PLAINTIFF,
v.
DAVID SPOKONY, DEPUTY CLERK, 1ST DEPARTMENT, DEFENDANT.

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

DECISION and ORDER

Currently before the Court in the above-captioned pro se prisoner civil rights action, filed by James Pettus ("Plaintiff"), are Plaintiff's motion to proceed in forma pauperis and a Report-Recommendation, filed by Magistrate Judge David E. Peebles on October 9, 2009, recommending that Plaintiff's motion be denied pursuant to the "three strikes" provision of the Prison Litigation Reform Act, 42 U.S.C. § 1915(g). (Dkt. Nos. 2, 4.) Plaintiff has not filed an Objection to the Report-Recommendation. For the reasons set forth below, Magistrate Judge Peebles' Report-Recommendation is accepted and adopted; Plaintiff's motion is denied; and Plaintiff's Complaint is conditionally dismissed unless, within thirty (30) days of the entry of this Decision and Order, Plaintiff pays the Court's filing fee of three hundred fifty dollars ($350.00).

I. 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).*fn1

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).*fn2 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).

II. DISCUSSION

After carefully reviewing all of the papers herein, including Magistrate Judge Peebles' thorough Report-Recommendation, the Court can find no clear error in the Report-Recommendation.*fn3 As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons stated therein, and Plaintiff's motion to proceed in forma pauperis is denied. Furthermore, Plaintiff's Complaint shall be dismissed without further Order of this Court, unless, within thirty (30) days of the entry of this Decision and Order, Plaintiff pays the Court's filing fee of three hundred fifty dollars ($350.00).

ACCORDINGLY, it is

ORDERED that Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 4) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that Plaintiff's motion to proceed in forma pauperis (Dkt. No. 2) is DENIED; and it is further

ORDERED that Plaintiff's Complaint (Dkt. No. 1) shall be DISMISSED in its entirety without further Order of this Court unless, within THIRTY (30) DAYS of the entry of this Decision and Order, Plaintiff pays the Court's filing fee of three hundred fifty dollars ($350.00).


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