The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Siragusa, J. Before the Court is the Report and Recommendation ("R&R") (Docket No. 52) of the Honorable Marian W. Payson, U.S. Magistrate Judge, recommending that the Court grant Plaintiff leave to file another motion to amend within a reasonable time, should he choose to do so, and include a proposed amended complaint clearly indicating the specific changes he proposes to make. For the reasons stated below, the Report and Recommendation is adopted in its entirety.
Judge Payson filed her Report and Recommendation on March 24, 2010, and Plaintiff filed what he captioned as a "Declaration in Objection to the Report and Recommendation and Decision and Order" (Docket No. 57) on April 7, 2010. In his declaration, Plaintiff states, inter alia, that, "it is appearing, that Hon. Magistrate Judge Payson, overlooked the fact of Hon. Judge Larimer's intent to be allowing Plaintiff Barclay to still file his claims had in the action docket No. 04-CV-6321 that he dismissed as duplicative to Barclay's case limitation to docket 04-CV-6321." (Pl.'s Decl. ¶ 48.)
After an extensive recitation of the procedural history of the case, Plaintiff makes the argument that when he appealed U.S. District Judge David G. Larimer's Decision and Order to the Second Circuit, "the decisions of both the Second Circuit panel judge and Judge Larimer below, constructively tolled the statute of limitation on docket 04-CV-6321." (Pl.'s Decl. ¶ 29.) Judge Payson reached the opposite conclusion, as she explained in her Report and Recommendation:
Approximately eight months after Barclay initiated the instant action, he filed a second action in this district. See Barclay v. Lowe, No. 04-CV-6321 (W.D.N.Y. 2004). In the complaint in that action, he alleged that over a dozen defendants, some of whom he had named in this action, further violated his constitutional rights at Attica. For example, the complaint alleged that defendant Lowe, a defendant in this action, and other defendants assaulted him on July 11, 2003. (See 04-CV-6321, Docket # 1). United States District Judge David G. Larimer subsequently dismissed the second action as duplicative of the instant action. (See id., Docket # 3). In his dismissal order, Judge Larimer advised Barclay that if he wished to add claims or facts that had not been alleged in the instant action, then he "may wish to make a motion . . . to be allowed to file a further amended complaint [in the instant case]." (Id.). Judge Larimer's dismissal was affirmed on appeal. Barclay v. Lowe, 131 F. App'x 778 (2d Cir. 2005).
On January 26, 2009, over four years after Judge Larimer's decision, Barclay filed the pending motion to amend his complaint. (Docket # 32). The proposed amended complaint names fourteen new defendants, all of whom were named as defendants in the action dismissed by Judge Larimer and three of whom were previously dismissed from this instant action by Judge Siragusa: the State of New York, Goord and Szemplenski. A comparison of the proposed amended complaint with the complaint that Judge Larimer dismissed reveals that the claims against the eleven newly-named defendants largely mirror those that were dismissed by Judge Larimer. In addition, the proposed amended complaint asserts the same claims (conspiracy, failure to protect, state law tort, ADA and 42 U.S.C. § 1997) that were previously dismissed by Judge Siragusa.
(Report & Recommendation, at 2--3.) Plaintiff disputes Judge Payson's conclusion that the Court deny, Barclay's motion to amend the complaint to add claims against eleven newly-named defendants and to reassert previously dismissed claims, including claims against Goord, Szemplenski and the State of New York. Due to the length of his proposed amended complaint (313 paragraphs comprising 43 pages) and the absence of an accompanying motion, it is unclear whether Barclay seeks to amend the substance of any claims currently pending before the Court. For this reason, and because he filed the proposed amended complaint within the deadline set by this Court for filing motions to amend the pleadings, I further recommend that the district court grant Barclay leave to file another motion to amend within a reasonable time period if he wishes to amend any of the currently pending claims. (Report & Recommendation, at 11 (emphasis added).)
A district court reviewing a magistrate judge's report and recommendation "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). Parties may raise objections to the magistrate judge's report and recommendation, but they must be "specific" and "written," and submitted "[w]ithin 14 days after being served with a copy" of the report and recommendation. Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1)(C).
Where a party submits timely objections to a report and recommendation, as Plaintiff has here, the district court reviews the parts of the report and recommendation to which the party objected under a de novo standard of review. 28 U.S.C. § 636(b) (1)(C); Fed. R. Civ. P. 72(b)(3) ("The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.").
Judge Payson's Report details the basis for Judge David G. Larimer's decision dismissing Plaintiff's action in 04-CV-6321 and Judge Larimer's comment about further amending the complaint in this case. (Report & Recommendation at 3.) More than four years later, Plaintiff moved in this case to amend (Docket No. 32). Judge Payson analyzed the proposed amended complaint and compared it with the one Judge Larimer dismissed, finding that "claims against the eleven newly-named defendants largely mirror those that were dismissed by Judge Larimer." (Report & Recommendation at 3.) Contrary to the position ...