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Edmon Gasaway, A/K/A Edmond Gasaway v. Bernard Williams

January 30, 2012

EDMON GASAWAY, A/K/A EDMOND GASAWAY, PLAINTIFF,
v.
BERNARD WILLIAMS, SPECIAL AGENT FOR TREASURY INSPECTOR GEN. FOR TAX ADMIN.; AND RANDY SILVIS, SPECIAL AGENT FOR TREASURY INSPECTOR GEN. FOR TAX ADMIN., DEFENDANTS.



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

MEMORANDUM-DECISION and ORDER

Currently before the Court, in this pro se prisoner action filed by Edmon Gasaway ("Plaintiff") against the two above-captioned federal agents pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., are (1) United States Magistrate Judge Randolph F. Treece's Report-Recommendation of September 21, 2011, recommending that Plaintiff's Complaint be sua sponte dismissed for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a),(b) unless Plaintiff files an Amended Complaint that states an actionable claim, and (2) Plaintiff's Amended Complaint of August 15, 2011. (Dkt. Nos. 6, 8.) For the reasons set forth below, Plaintiff's Amended Complaint is accepted for filing, Magistrate Judge Treece's Report-Recommendation is adopted with modification, and Plaintiff's Amended Complaint is sua sponte dismissed with prejudice for failure to state a claim and frivolousness pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a),(b). In addition, Plaintiff is directed to show cause, within thirty (30) days of this Decision and Order, why this Court should not issue an Order barring him from filing any future pro se actions in this Court without first obtaining leave of the Court.

I. RELEVANT BACKGROUND

Because this Decision and Order is intended primarily for the review of the parties, the Court will not recite in detail Plaintiff's claims and factual allegations, or the procedural history of the action, except where necessary below in Part III of this Decision and Order.

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 conducting 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. Legal Authority Permitting Court to Sua Sponte Review Plaintiff's Complaint Under the Circumstances

Because Magistrate Judge Treece correctly recited the authorities that confer upon the Court the power, and the duty, to sua sponte review Plaintiffs' Complaint under the circumstances, the Court will not repeat them here. (See Dkt. No. 6, at 1-2.) The Court would add only that it also possesses the inherent power to sua sponte dismiss pro se complaint based on frivolousness. See, e.g., Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (recognizing that district court has power to sua sponte dismiss pro se complaint based on frivolousnessnotwithstanding fact that plaintiff has paid statutory filing fee).

C. Legal Standard Governing Dismissal Based on Failure to State a Claim

It has long been understood that a dismissal for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:

(1) a challenge to the "sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp.2d 204, 211, nn. 15-16 (N.D.N.Y. 2008) ...


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