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Arthur Mercer v. Eric T. Schneiderman

August 18, 2011

ARTHUR MERCER, PLAINTIFF,
v.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL FOR THE STATE OF NEW YORK; HOLLEY D. CARNRIGHT, ULSTER COUNTY DISTRICT ATTORNEY; AND KEVIN C. HARP, ULSTER COUNTY PROSECUTOR, DEFENDANTS.



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

DECISION and ORDER

Currently before the Court in this pro se civil rights action, filed by Arthur Mercer ("Plaintiff") against the three above-captioned individuals ("Defendants"), is United States Magistrate Judge David R. Homer's Report-Recommendation recommending that Plaintiff's Complaint be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e), based on his finding that the claims asserted in that Complaint fail to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 5.) For the reasons set forth below, the Report-Recommendation is accepted and adopted, and Plaintiff's Complaint is dismissed with prejudice.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

On April 29, 2011, Plaintiff filed his Complaint. (Dkt. No. 1.) Generally, in his Complaint, Plaintiff alleges that Defendants violated his constitutional rights in the following respects: (1) Defendant Carnright allowed Defendant Harp to present an indictment to the Ulster County Court grand jury despite Plaintiff not having legal representation, in violation of his right to due process under the Fourteenth Amendment; (2) Defendants Carnright and Harp did not allow Plaintiff to testify before the grand jury despite receiving notice that Plaintiff intended to do so, in violation of his right to due process under the Fourteenth Amendment; and (3) Defendant Schneiderman allowed Defendant Harp to present the criminal case against Plaintiff to the grand jury despite Plaintiff not having legal representation, in violation of his right to equal protection under the Fourteenth Amendment. (Dkt. No. 1 at 2.) For a more detailed recitation of Plaintiff's allegations, the Court refers the reader to the Complaint in its entirety, and to Magistrate Judge Homer's thorough Report-Recommendation, which accurately describes those allegations. (Dkt. Nos. 1, 5.)

B. Magistrate Judge Homer's Report-Recommendation

On May 16, 2011, Magistrate Judge Homer issued a Report-Recommendation recommending that Plaintiff's Complaint be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e) for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 5.) Magistrate Judge Homer based his recommendation on the following:

(1) the fact that Plaintiff's claims for money damages are barred by the rule set forth by the Supreme Court in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), because Plaintiff failed to allege facts plausibly suggesting that his criminal conviction "has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal . . . or called into question by a federal court's issuance of a writ of habeas corpus . . . ."; (2) the fact that Plaintiff's claims for money damages against the New York State Department of Corrections ("DOCS") are barred by the Eleventh Amendment; and (3) the fact that Defendants Schneiderman and Carnright are absolutely immune from liability under 42 U.S.C. § 1983 to the extent Plaintiff's claims are based on them allegedly allowing Defendant Harp to criminally prosecute him. (Dkt. No. 5.)

C. Plaintiff's Objection to the Report-Recommendation

On June 30, 2011, after an extension of time was granted by the Court, Plaintiff filed his Objection to the Report-Recommendation. (Dkt. No. 8.) In his Objection, Plaintiff "agrees with this [C]court in its decision to dismiss [his] Complaint but respectfully request[s] [permission] . . . to resubmit [his Complaint] if the need arise[s]" at "a later date." (Dkt. No. 8, at 2-3.) Liberally construed, then, Plaintiff's Objection objects only to the dismissal of his Complaint with prejudice, requesting leave to file either an Amended Complaint or a new action.

II. STANDARD OF REVIEW

A. Standard of Review Governing a Report-Recommendation

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." 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 ...


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