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Carmencita Bruno v. City of Schenectady

June 12, 2012

CARMENCITA BRUNO, PLAINTIFF,
v.
CITY OF SCHENECTADY, CITY OF SCHENECTADY POLICE DEP'T; THOMAS MATTICE #75, ARRESTING POLICE OFFICER; JOHN DOE #1, ARRESTING POLICE OFFICER; JANE DOE #1, INTAKE POLICE OFFICER AT STATION; JOHN DOE #2, INTAKE POLICE OFFICER AT STATION; JOHN DOE #3, POLICE OFFICER AT HOSPITAL; MICHAEL DELLAROCCO, CITY OF SCHENECTADY FIRE DEP'T CHIEF, JOHN DOE #4, CITY OF SCHENECTADY FIRE DEP'T CAPTAIN; CNTY. OF SCHENECTADY, CNTY. OF SCHENECTADY EMS DEP'T, JOHN / JANE DOE #5, EMP. OF SCHENECTADY CNTY. EMS DEP'T; VILLAGE OF SCOTIA, VILLAGE OF SCOTIA FIRE DEP'T, AND JOHN / JANE DOE, EMPS. OF VILLAGE OF SCOTIA FIRE DEP'T, DEFENDANTS.



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

MEMORANDUM-DECISION and ORDER

Currently before the Court, in this pro se civil rights action filed by Carmencita Bruno ("Plaintiff") against the above-captioned individuals and municipalities ("Defendants") pursuant to 42 U.S.C. § 1983 and New York State law, is the Report-Recommendation of United States Magistrate Judge Randolph F. Treece recommending that Plaintiff's Complaint be sua sponte dismissed for failure to state a claim unless she files an Amended Complaint that states a claim upon which relief can be granted. (Dkt. No. 4.) For the reasons set forth below, Magistrate Judge Treece's Report-Recommendation is adopted.

I. RELEVANT BACKGROUND

Generally, in her Complaint, Plaintiff alleges that, after emergency personnel rejected her requests for assistance in rescuing seven dogs from her burning home, an altercation ensued between Plaintiff was emergency personnel, and Plaintiff was arrested. (Dkt. No. 1.) Based on these factual allegations, and liberally construed, Plaintiff's Complaint asserts the following federal claims against Defendants: (1)Defendants used excessive force against her, (2) Defendants falsely arrested Plaintiff; (3) Defendants deprived her of property without due process; and (4) Defendant Police Department failed to implement the proper policies, customs and practices with regard to the rescuing of canine pets during emergencies. (Id.) Plaintiff also asserts the following state common law claims against Defendants: (1) false imprisonment; (2) negligence; (3) negligent supervision; (4) conversion; and (5) battery. (Id.)

By Report-Recommendation dated March 7, 2012, the Magistrate Judge Treece recommended Plaintiff's Complaint be sua sponte dismissed for failure to state a claim (due to her failure to allege facts plausibly suggesting the personal involvement of Defendants in the violations alleged), unless she files an Amended Complaint that states a claim upon which relief can be granted. (Dkt. No. 4.)

Despite being advised of her right to file Objections to the Report-Recommendation, Plaintiff has not done so, and the deadline for the filing of such Objections has expired. (See generally Docket Sheet.)

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. Standard Governing a Motion to Dismiss for 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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