UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
September 12, 2012
EILEEN E. NUTT, PLAINTIFF,
NEW YORK STATE; STATE UNIV. OF NEW YORK; AND UPSTATE MED. UNIV., DEFENDANTS.
The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se employmentcivil rights action filed by Eileen
E. Nutt ("Plaintiff") against the three above-captioned entities ("Defendants"), is the Report-Recommendation of United States Magistrate Judge Therese Wiley Dancks recommending that Plaintiff's Complaint be sua sponte dismissed with leave to amend. No objections have been filed and the deadline by which to do so has expired. For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety.
I. RELEVANT BACKGROUND
Generally, liberally construed, Plaintiff's Complaint asserts the following three claims against Defendants arising from her employment Upstate Medical University Hospital between approximately August 15, 2008, and July 19, 2011: (1) a claim of disability discrimination in violation of the Americans with Disabilities Act ("ADA"); (2) a claim of age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"); and (3) a claim of gender discrimination in violation of Title VII. (See generally Dkt. No. 1.) Familiarity with the factual allegations supporting these claims (which are accurately summarized in Part I of Magistrate Judge Dancks' Report-Recommendation) is assumed in this Decision and Order, which is intended primarily for the review of the parties.
Generally, in her Report-Recommendation, Magistrate Judge Dancks bases her recommendation of dismissal (with leave to amend) on the following four findings: (1) because the doctrine of sovereign immunity under Eleventh Amendment protects Defendants from liability on Plaintiff's claims under the ADA and ADEA, Plaintiff's only recourse under the circumstances is to sue one or more state officials in their official capacity for prospective, injunctive relief (which she has not done); (2) in addition to being flawed due to the above-described immunity issue, Plaintiff's claim under the ADEA is flawed because Plaintiff does not allege how old she is now or how old she was during the relevant time period; (3) any Title VII claim that Plaintiff is attempting to assert under a discrimination theory of liability is flawed because Plaintiff fails to allege facts plausibly suggesting the fourth element of that claim (i.e., that the adverse action occurred under circumstances giving rise to an inference of discrimination); and (4) any Title VII claim that Plaintiff is attempting to assert under a harassment (or hostile-work-environment) theory of liability is flawed because Plaintiff fails to allege facts plausibly suggesting either the first or third elements of that claim (i.e., that the complained-of conduct creates an environment that a reasonable person would find hostile or abusive, and that the complained-of conduct creates such an environment because of the plaintiff's sex). (Dkt. No. 3, at Part IV.)
II. STANDARD OF REVIEW
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 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).
Because Plaintiff did not submit an objection to the Report-Recommendation, the Court reviews the Report-Recommendation only for clear error, as described in Section II of this Decision and Order. After carefully reviewing the relevant filings in this action, the Court can find no clear error in the Report-Recommendation. Magistrate Judge Dancks employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. (Dkt. No. 3) As a result, Magistrate Judge Dancks' Report-Recommendation is accepted and adopted in its entirety for the reasons stated therein. (Id.) The Court would add only that Magistrate Judge Dancks' thorough and correct Report-Recommendation would survive even a de novo review.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Dancks' Report-Recommendation (Dkt. No. 3) is ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED, and this action closed, unless, within THIRTY (30) DAYS of the date of this Decision and Order, Plaintiff submits an Amended Complaint that complies with the recommendations made in Magistrate Judge Dancks' Report-Recommendation (Dkt. No. 3); and it is further
ORDERED that, in the event that Plaintiff files an Amended Complaint within thirty (30) days from the date of this Decision and Order, the Clerk of the Court is directed to return the file to Magistrate Judge Dancks for further review.