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Rick Trombley, On Behalf of Himself, and His Minor Children H and N v. John Oneill

November 23, 2011

RICK TROMBLEY, ON BEHALF OF HIMSELF, AND HIS MINOR CHILDREN H AND N, PLAINTIFF,
v.
JOHN ONEILL, INDIVIDUALLY AND AS COMM'R OF ESSEX CNTY. DEP'T OF SOC. SERVS.; JEFFERY LETSON, INDIVIDUALLY AND AS ESSEX CNTY. CHILD PROTECTIVE SERV. CASEWORKER; KIM MARIE, INDIVIDUALLY AND AS ESSEX CNTY. FOSTER CARE CASEWORKER; RICHARD MEYER, INDIVIDUALLY AND ESSEX CNTY. SUPREME COURT AND FAMILY INDIVIDUALLY AND AS FRANKLIN CNTY. ASSIST. DIST. ATTORNEY; DEREK CHAMPAGNE, INDIVIDUALLY AND AS FRANKLIN CNTY. DIST. ATTORNEY; AND MICHAEL GALLANT, INDIVIDUALLY AND AS ATTORNEY FOR ESSEX CNTY. DEP'T OF SOC. SERVS., DEFENDANTS.



The opinion of the court was delivered by: Judge; John Delehanty,

MEMORANDUM-DECISION and ORDER

Currently before the Court in this pro se civil rights action, filed by Rick Trombley ("Plaintiff") against the seven above-captioned individuals ("Defendants"), is United States Magistrate Judge David R. Homer's Report-Recommendation recommending that Plaintiff's claims against Defendants Meyer, Champagne, and Delehanty be dismissed pursuant to 28 U.SC. §1915(e)(2)(B) and N.D.N.Y. L.R. 5.4(a). (Dkt. No. 5.) For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety, and Plaintiff's claims against Defendant Meyer, Champage, and Delehanty are dismissed.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

Plaintiff filed his Complaint on May 23, 2011. (Dkt. No. 1.) Generally, in his Complaint, Plaintiff alleges that the above-captioned Defendants violated his constitutional rights when they illegally seized his children without adequate due process and wrongfully arrested him for assault. (Dkt. No. 1, "Facts.") More specifically, Plaintiff alleges, among other things, as follows: (1) on May 19, 2009, Defendant Jeffrey Letson, an employee of the Essex County Department of Child Protective Services, illegally entered his home without probable cause or a warrant and attempted to remove Plaintiff's two children; (2) on May 20, 2008, Defendant John Oneill, Commissioner of the Essex County Department of Social Services, filed a petition for removal of Plaintiff's sons, despite lacking the proper grounds to do so; (3) on May 20, 2008, Defendant Richard Meyer, Essex County Supreme and Family Court Judge, heard and granted the petition for removal despite lacking the authority to do so; (4) sometime between November 26, 2008, and December 4, 2008, Defendant John Delehanty, Franklin County Assistant District Attorney, had Plaintiff falsely arrested; (5) in September 2009, Defendant Delehanty unlawfully sought Plaintiff's arrest for violating an order of protection despite dismissal of the charge by a Grand Jury in June 2009; and(6) Defendant Kim Marie, foster care case worker for Essex County, discriminated against him during the custody evaluation. (Id.) 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 Report-Recommendation. (Dkt. Nos. 1, 5.)

B. Magistrate Judge Homer's Report-Recommendation and Plaintiff's Objections to the Report-Recommendation

On June 15, 2011, Magistrate Judge Homer issued a Report-Recommendation recommending that Plaintiff's Complaint be dismissed against Defendants Meyer, Champagne, and Delehanty pursuant to 28 U.S.C. §§1915(e)(2)(B), and directed service of process as to the remaining Defendants in the action. (See generally Dkt. No. 5.)

On June 29, 2011, Plaintiff filed an Objection/Clarification to the Report-Recommendation. (Dkt. No. 9.) In his Objection, Plaintiff first clarifies that the basis for his current incarceration is an assault charge and not a charge for violating an order of protection, and that the basis for the current action is the unfair treatment that he and his children received by "government agencies of Essex and Franklin [C]ounties" when they conspired to illegally seize his children and maliciously incarcerated him to prevent their return to his custody. (Dkt. No. 9.) Plaintiff then argues that Magistrate Judge Homer erred in recommending the dismissal of Plaintiff's claims against Defendants Meyer and Delehanty because (1) Defendant Meyer did not have legal jurisdiction to oversee the child neglect proceeding, and (2) Defendant Delehanty pursued a warrant for Plaintiff's arrest based on a probation violation which was dismissed, and in doing so, acted outside the scope of his authority as a prosecutor. (Dkt. No. 9.) Plaintiff did not submit an Objection with regard to the portion of the Report-Recommendation recommending dismissal of Defendant Champagne.

II. APPLICABLE LEGAL STANDARDS

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 [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] 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 ...


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