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Russell Vanbrocklen v. the Dep't of Homeland Sec.; and

July 12, 2012

RUSSELL VANBROCKLEN, PLAINTIFF,
v.
THE DEP'T OF HOMELAND SEC.; AND
JANET NAPOLITANO, SEC'Y OF THE DEP'T OF HOMELAND SEC., 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 Russell VanBrocklen ("Plaintiff") against the Department of Homeland Security and Secretary Janet Napolitano ("Defendants"), are United States Magistrate Judge Andrew T. Baxter's Report-Recommendation recommending that Plaintiff's Complaint be sua sponte dismissed with prejudice for failure to state a claim upon which relief can be granted and frivolousness (Dkt. No. 4), and Plaintiff's Objection to the Report-Recommendation (Dkt. No. 5). For the reasons set forth below, Magistrate Judge Baxter's Report-Recommendation is accepted and adopted in its entirety and Plaintiff's Complaint is dismissed with prejudice.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

On January 3, 2012, Plaintiff filed his Complaint in this action. Generally, in his Complaint, Plaintiff alleges that in, December 2010 and January 2011, he was prevented from flying when "two to three individual TSA managers . . . refused to screen the Plaintiff after the Plaintiff requested a female TSA agent to conduct a pat down search," due to a "medical condition" that causes him to "greatly prefer[] not to deal with male personal [sic] concerning screening such as pat downs." (Dkt. No. 1, at ¶¶ 6-7.) Based on these factual allegations, Plaintiff asserts claims under Section 504 of the Rehabilitation Act of 1973 and Section 296(2)2 of the New York Human Rights Law. (Id. at "Counts 1-4.")

B. Magistrate Judge Baxter's Report-Recommendation

On January 12, 2012, Magistrate Judge Baxter issued his Report-Recommendation recommending that Plaintiff's Complaint be sua sponte dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii) failure to state a claim upon which relief can be granted and frivolousness. (Dkt. No. 4.) Generally, in rendering his recommendation, Magistrate Judge Baxter found as follows: (1) Plaintiff has failed to allege facts plausibly suggesting a claim under Section 504 of the Rehabilitation Act; (2) Plaintiff's claim under Section 504 of the Rehabilitation Act is frivolous and malicious because it is essentially identical to a claim previously dismissed as not cognizable by United States District Judge Thomas J. McAvoy (which arose from facts occurring two years before the facts giving rise to the current action); and (3) because Plaintiff's federal claims under Section 504 of the Rehabilitation Act are dismissed, the Court may decline to exercise jurisdiction over Plaintiff's state law claims under 28 U.S.C. § 1367(a). (Dkt. No. 4, at Part II.A- II.B.)

C. Plaintiff's Objections to the Report-Recommendation

On January 24, 2012, Plaintiff submitted an Objection to the Report-Recommendation. (Dkt. No. 5.) Generally, in his Objection, Plaintiff asserts the following arguments: (1) requesting that a female TSA agent screen Plaintiff is not an unreasonable accommodation, because, as the Second Circuit determined in Wright v. Giuliani, 230 F.3d 543, 548 (2d Cir. 2000), organizations are required to make "reasonable accommodations" for disabled persons; therefore; and (2) pat-downs and body searches along cross-gender lines are legal and reasonable under federal law. (Id.)

II. GOVERNING 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 ...


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