UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
October 24, 2011
TRACY BARBER, PLAINTIFF,
UNITED STATES OF AMERICA, 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 this pro se civil rights action filed by Tracy Barber ("Plaintiff") against the United States of America ("Defendant"), are the following: (1) Plaintiff's Amended Complaint (Dkt. No. 5); and (3) United States Magistrate Judge Randolph F. Treece's Report-Recommendation recommending that Plaintiff's Amended Complaint be dismissed in its entirety (Dkt. No. 8). For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety, and Plaintiff's Amended Complaint is dismissed in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
I. RELEVANT BACKGROUND
Plaintiff filed his Complaint on May 9, 2011. (Dkt. No. 1.) On July 15, 2011, this Court issued a Decision and Order that sua sponte dismissed the Complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B), unless, within 30 days from the date of that Order, Plaintiff filed an Amended Complaint that states a claim upon which relief can be granted. (Dkt. No. 4.) In that Decision and Order, the Court provided Plaintiff with specific guidance on filing an Amended Complaint. (Id.)
On July 25, 2011, Plaintiff submitted an Amended Complaint. (Dkt. No. 5.) On August 10, 2011, Magistrate Judge Treece issued a Report-Recommendation recommending that Plaintiff's Amended Complaint be dismissed, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim upon which relief could be granted. (Dkt. No. 8.) In support of his recommendation, Magistrate Judge Treece found, among other things, as follows: (1) Plaintiff failed to allege any facts in the body of his Amended Complaint regarding Defendant such that it would be possible for the Court to deduce a basis for jurisdiction and liability over this Defendant; and (2) Plaintiff's vague allegations do not plausibly suggest what, if any, is the precise source of the Court's jurisdiction over this action, who the individual offenders are, what actions they committed, what rights were violated, and what, if any, relief is being sought. (See generally Dkt. No. 8.)
On August 15, 2011, Plaintiff filed an Objection to the Report-Recommendation. (Dkt. No. 9.) In his one-paragraph Objection, Plaintiff does not address any of the grounds for dismissal outlined in Magistrate Judge Treece's Report-Recommendation. (Id.) Rather, Plaintiff appears to argue that the clerk of the Court erred in not appointing him counsel after his Complaint was filed, an error which the Court of Appeals must now correct. (Id.)
II. STANDARD OF REVIEW
A. Standard of Review Governing a Report-Recommendation
When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be "specific," the objection must, with particularity, "identify  the portions of the proposed findings, recommendations, or report to which it has an objection and  the basis for the objection." N.D.N.Y. L.R. 72.1(c).*fn1 When performing such a de novo review, "[t]he judge may . . . receive further evidence. . . ." 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance.*fn2
When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition.*fn3 Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.*fn4 Finally, when no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a "clear error" review, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Id.*fn5
After conducing 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).
B. Standard of Review Governing a Dismissal Pursuant to 28 U.S.C. §1915(e)(2)(B)(ii)
In its Decision and Order of July 15, 2011, the Court previously recited the legal standard governing a dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). (Dkt. No. 4.) As a result, this standard is incorporated by reference in this Decision and Order.
As an initial matter, even when construed with the utmost of liberality, Plaintiff's Objections fail to specifically address Magistrate Judge Treece's recommendations. As a result, and for the reasons explained in Part II.A of this Decision and Order, the Court need review the Report-Recommendation only for clear error.
After doing so, the Court can find no error in the Report-Recommendation, clear or otherwise. Magistrate Judge Treece employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. (Id.) As a result, Magistrate Judge Treece's Report-Recommendation is accepted and adopted in its entirety for the reasons stated therein.
The Court would add only two points. First, the Report-Recommendation would survive even a de novo review. Second, to the extent Plaintiff's Objections may be liberally construed as constituting a motion for appointment of counsel, that motion is denied for three alternative reasons. First, the motion fails to comply with the Local Rules of this Court. Second, having dismissed the Amended Complaint, it would be futile to appoint counsel. Third, because Plaintiff has failed to allege any facts that provide the Court with even a basic understanding of the relief that he is requesting, the person or persons against whom that relief is sought, and/or why this Court has jurisdiction to consider the action, the Court cannot determine whether appointment of counsel is warranted.
ACCORDINGLY, it is ORDERED that Magistrate Judge Treece's Report-Recommendation (Dkt. No. 8) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Plaintiff's Amended Complaint (Dkt. No. 5) is DISMISSED in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
The Court certifies, for purposes of 28 U.S.C. § 1915(a)(3), that any appeal taken from this Decision and Order would not be taken in good faith.