The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
Plaintiff, Major C. Seabury, filed this pro se action on February 4, 2010, claiming that the United States and the State of New York had violated his constitutional rights. Seabury's allegations cast a wide net because they are:
"based on all of the documents in the records and files and/or not in the records and files of the courts and agencies identified in this complaint (including but not limited to files in the records of the United States District Court, Southern District, the United States District Court, Eastern District, Offices of the Honorable Timothy H. Bishop, City of New York, I.R.S., State of New York, United Federation of Teachers Et. Al.), which are required to be in them by law but are not." (Compl. ¶ 6)
The complaint rambles on to allege numerous petitions that Seabury previously filed with various Federal, State, and City offices, as well as the Offices of Congressman Bishop and New York State Senator Brian Foley. Generally, these petitions demand that the recipient petition Congress or the New York legislature (as appropriate) and that failure to do so will result in a "'Default' of that petition." Seabury's grievance appears to arise out of his employment by the New York City Board of Education and the calculation of his retirement benefits with the United Federation of Teachers.
On February 8, 2010, the Court referred the matter to Magistrate Judge Gabriel Gorenstein, who issued his Report and Recommendation, dated March 1, 2010. Magistrate Judge Gorenstein found that the allegations of Seabury's complaint were: "almost impossible to follow" and generally "unintelligible." He determined the complaint was legally frivolous. The United States is immune from suit, unless it has consented to be sued. Hercules Inc. v. United States, 516 U.S. 417, 422 (1996). Magistrate Judge Gorenstein found no allegations in the complaint suggesting "that relief is being sought for claims over which the United States has waived its sovereign immunity." Similarly, the State of New York was immune from suit, pursuant to the Eleventh Amendment.
Magistrate Judge Gorenstein also relied on the Opinion and Order of U.S. District Judge Gleeson in the case of Seabury v. United States and the State of New York, 10 Civ. 495 (JG), (E.D.N.Y. Docket #5, February 16, 2010), which pleading is nearly identical to the pleading at issue here. Judge Gleeson reviewed the complaint, listed the four prior legal actions instituted by Seabury, as well as his repeated petitions and motions threatening defaults. Judge Gleeson also held both the United States and the State of New York immune from suit; and in any event, Seabury was not free to re-litigate prior actions by filing a new lawsuit.
Magistrate Judge Gorenstein recognized that it was unusual "to dismiss a case without affording plaintiff the opportunity to be heard in opposition." Nonetheless, the complaint was so lacking in merit that he felt dismissal was appropriate; noting that Seabury would have an opportunity to object or oppose the Report and Recommendation. Accordingly, he recommended that the complaint should be dismissed with prejudice.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), Magistrate Judge Gorenstein gave Seabury 14 days to serve and file any objections to the Report and Recommendation.
A district 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). When a timely objection has been made to the magistrate's recommendations, the court is required to review the contested portions de novo. Pizzaro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). The court, however, "may adopt those portions of the Report to which no objections have been made and which are not facially erroneous." La Torres v. Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y. 2000). Moreover, "[w]hen a party makes only conclusory or general objections.the Court will review the Report strictly for clear error..Objections to a Report must be specific and clearly aimed at particular findings in the magistrate judge's proposal." Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009) (citations omitted).
Seabury never filed objections to Magistrate Judge Gorenstein's Report and Recommendation. Rather, he filed multiple applications to hold the Defendants in default for their failure to answer his February, 2010 complaint. In doing so, he ignored the March 1, 2010 Report and Recommendation that his case be dismissed with prejudice. The Court reviewed the affidavits and filings of June, July and October, 2010.
On June 24, 2010, Seabury filed an "Affidavit in Support of Amendment to Application for Default Judgment," dated June 17, 2010. Seabury had attempted to file this application in April, but it was returned to him by the Pro Se Office. Nothing in the Affidavit dated June 17, 2010 mentions, deals with, or refers to the March 1, 2010 Report and Recommendation. In any event, entry of a default would not be appropriate, in light of Magistrate Judge's Gorenstein's intervening Report and Recommendation that the matter be dismissed. This determination stayed Defendants' obligation to answer or move with respect to the complaint. (See Report and Recommendation, March 1, 2010, fn. 2 at pg. 3).
Seabury filed a similar Affidavit on July 29, 2010 complaining that the Defendants had not answered his February complaint. The Pro Se Office sent the ...