The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.
Plaintiff, proceeding pro se, commenced this civil rights action on March 8, 2010, asserting various due process violations arising out of the events leading up to and following the rescission of his medical license.*fn1 (Doc. No. 2.) By motion filed December 20, 2010, all defendants moved to dismiss. (Doc. Nos. 25-28.) By Order entered December 20, 2010, the Court referred that motion to the assigned Magistrate Judge, the Honorable Robert M. Levy. On June 30, 2011, Judge Levy issued a Report and Recommendation (the "R&R") recommending that defendants' motion be granted. On July 29, 2011, plaintiff filed timely objections (Doc. No. 37), and on August 12, 2011, defendants responded thereto (Doc. No. 38).*fn2
Rule 72 of the Federal Rules of Civil Procedure permits magistrate judges to conduct proceedings on dispositive pretrial matters without the consent of the parties. Fed. R. Civ. P. 72(b). Any portion of a report and recommendation on dispositive matters, to which a timely, specific objection has been made, is reviewed de novo. Id.; see Thomas v. Arn, 474 U.S. 140, 149 (1985); DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 340 (S.D.N.Y. 2009). The district court is not required to review de novo, and may instead review for clear error, those portions of a report and recommendation to which no specific objections are addressed. See DiPilato, 662 F. Supp. 2d at 339. Where an objection consists of "conclusory or general arguments", or is merely an "attempt to engage the district court in rehashing of the same arguments set forth in the original petition" clear error review is appropriate. Id. Even considering the lenient standard normally afforded to the objections of a pro se party, such as plaintiff in this case, objections must still be "specific and clearly aimed at particular findings" so as to prevent "relitigating a prior argument". Id. at 340. After review, the district judge may accept, reject, or modify any of the magistrate judge's findings or recommendations. Fed. R. Civ. P. 72(b)(3).
While plaintiff purports to make objections to specific conclusions in
the R&R, his objections consist almost entirely of a rehashing of the
factual basis for his complaint, which his previous submissions set
forth in great detail, or of conclusory assertions of law.*fn3
Nevertheless, out of an abundance of caution and given
plaintiff's pro se status, the Court has conducted a de novo review of
the record and has considered the R&R, Plaintiff's objections thereto
as well as all of plaintiffs submissions in the record, defendants'
submissions, and the relevant legal authority.
Having done so, the Court overrules all of plaintiffs' objections, and adopts in full Judge Levy's thorough, and well-reasoned analysis with the following amplification. Plaintiff's due process claim for the rescission of his medical license depends on his ability to show a violation of his due process rights, not the sufficiency of the evidence against him. See Blake v. Ambach, 691 F. Supp. 651, 655 (S.D.N.Y. 1988) ("Section 1983 is not a means for litigating in a federal forum whether a state or local administrative decision was wrong. . . ."). Prior to the suspension and ultimate revocation of plaintiff's license he had a three day hearing (Compl. ¶ 27), where he was represented by counsel (Affirmation of Rose Firestein, dated Nov. 2, 2010 (Doc. No. 28) ("Firestein Aff.") Ex. 8, at 1-2), where he testified himself, where he could produce or cross-examine witnesses (Firestein Aff. Ex. 8, at 2 & App. I), and of which he received advance notice (Firestein Aff. Ex. 8, at App. I). After the hearing committee suspended his license, he appealed to the Administrative Review Board ("ARB"), where he was represented by counsel and made written submissions. (Comp. ¶ 28; Firestein Aff. Ex. 11, at 3-4). Ultimately, when the ARB appeal resulted in the revocation of plaintiff's license, he had a right to - - and did - - appeal to the third judicial department via an Article 78 proceeding. (See N.Y. Pub. Health Law § 230-c(5); Compl. ¶ 43.)
Given the extensive pre-depriviation proceedings, and plaintiff's post-deprivation right to challenge those proceedings in state court, plaintiff's few actual process complaints are unavailing. See Levy v. Cohen, No. 09-CV-2734 (NGG) (LB), 2010 U.S. Dist. LEXIS 109914, at *9-11 (E.D.N.Y. Oct. 14, 2010) aff'd 2011 U.S. App. LEXIS 18399 (2d Cir. Sept. 2, 2011).*fn4
For the reasons set forth in the Magistrate Judge's R&R, as amplified herein, defendants' motion to dismiss (Doc. No. 25) is GRANTED in its entirety.
Ordinarily leave to amend should be granted to a pro se plaintiff if a "liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Even under this broad standard, however, the Court may deny leave to amend "in instances of futility." Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). As here, where the problem is a "substantive" one as explained in Judge Levy's R&R, "better pleading will not cure it," and"[r]epleading would thus be futile." Cuoco, 222 F.3d at 112. Leave to replead, therefore, is DENIED.
Based upon a de novo review of Judge Levy's thorough and well-reasoned R&R, the factual and procedural record upon which it is based, and Plaintiff's objections, the R&R is adopted in all material respects. Accordingly, Defendants' motion to dismiss is GRANTED and the complaint is DISMISSED without leave to replead. The Clerk of Court is directed to enter Judgment accordingly and to close the case. The Clerk is further directed to transmit a copy of this Order to plaintiff pro se via U.S. Mail.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
ROSLYNN R. MAUSKOPF United States ...