UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
September 12, 2012
NATHANIAL TUFF, PLAINTIFF,
MARISSA MONTANA GUZMAN, CASE WORKER; AND ONEIDA CNTY. CHILD PROTECTIVE SERVS., 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 civil rights action filed by Nathaniel Tuff ("Plaintiff") against the above-captioned individual and entity ("Defendants") pursuant to 42 U.S.C. § 1983, is the Report-Recommendation of United States Magistrate Judge David E. Peebles recommending that Plaintiff's Complaint be sua sponte dismissed in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B) and Fed. R. Civ. P. 12(h)(3), with leave to amend as to Section 1983 claims asserted on his own behalf within thirty days of any Decision and Order adopting the Report-Recommendation. (Dkt. No. 4.) Plaintiff has not filed an Objection to the Report-Recommendation (which was filed on May 4, 2012), and the time period in which to do so has expired. (See generally Docket Sheet.) For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety.
I. RELEVANT BACKGROUND
Generally, in his Complaint, filed on March 28, 2012, Plaintiff alleges that Defendants violated his civil rights, and those of his three children, by (1) detaining his three children without informing them of their civil rights on February 13, 2012, and (2) "left out important info[rmation]" in reports to Child Protective Services on March 9, 2012. (Dkt. No. 1, at ¶ 4.) Based on these allegations, Plaintiff's Complaint asserts the following three claims, purportedly on his own behalf and the behalf of his three children: (1) a claim of "unethical use of authority" under 18 U.S.C. § 242; (2) a claim of violation of "the right to pursue happiness" and "the right to have [one's] parents present during questioning" under 42 U.S.C. § 1983; and (3) negligence based on the "harass[ment of Plaintiff] when [his] children weren't home," under 42 U.S.C. § 1983 and/or state law. (Id. at ¶ 5.)
Generally, in his Report-Recommendation, Magistrate Judge Peebles bases his recommendation of dismissal on the following three findings: (1) the Court lacks subject-matter jurisdiction over Plaintiff's claims asserted on behalf of his children pursuant due to a lack of standing, requiring the dismissal of those claims under Fed. R. Civ. P. 12(h)(3); (2) Plaintiff's sparse Complaint fails to allege facts plausibly suggesting a violation of 42 U.S.C. § 1983 or 18 U.S.C. § 242, or a claim for either negligence or harassment, pursuant to Fed. R. Civ. P. 12(b)(6), and/or is frivolous, requiring the dismissal of those claims under Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(i),(ii); and (3) Defendant Guzman is immune from liability by N.Y. Soc. Servs. Law § 419, requiring the dismissal of Plaintiff's claims against her under Fed. R. Civ. P. 12(h)(3) and/or 28 U.S.C. § 1915(e)(2)(B)(ii). (Dkt. No. 21, at Part II.C.) However, in deference to Plaintiff's special status as a pro se civil rights litigant, Magistrate Judge Peebles recommends that Plaintiff be allowed thirty days in which to amend his Complaint with respect to those claims asserted under 28 U.S.C. § 1983 on his own behalf. (Id. at Part II.D.)
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 above in Part 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 Peebles employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. (Dkt. No. 4.) As a result, Magistrate Judge Peebles' Report-Recommendation is accepted and adopted in its entirety for the reasons stated therein. (Id.)Indeed, Magistrate Judge Peebles' thorough and correct Report-Recommendation would survive even a de novo review.
The Court adds two brief points. First, the Court notes that, on May 21, 2012, Magistrate Judge Peebles' Report-Recommendation was returned to the Court as "unclaimed" by Plaintiff. (Dkt. No. 5.) To the extent that failure to claim was due to Plaintiff's failure to provide an updated address to the Court, the dismissal of this action is premised on the alternative ground that Plaintiff has failed to update his address, warranting dismissal under Local Rule 10.1(c)(2), Local Rule 41.2(b), and/or Fed. R. Civ. P. 41(b). The Court notes that Plaintiff, who is an experienced litigant in this Court, was reminded of his duty to keep the Clerk's Office apprised of his current address by page 43 of the District's Pro Se Handbook, a courtesy copy of which was provided to Plaintiff on March 28, 2012. (Dkt. No. 3.)
Second, not only did Plaintiff file the five cases listed by Magistrate Judge Peebles in footnote 1 of this Report-Recommendation before filing this action, Plaintiff filed a sixth case before filing this action. See Tuff v. Comm'r of Soc. Sec., 12-CV-0428, Complaint (N.D.N.Y. filed March 9, 2012). While that sixth case is currently pending with the undersigned, the five cases listed by Magistrate Judge Peebles were each rather readily dismissed by the Court as patently without merit. Under the circumstances, Plaintiff is respectfully cautioned that he is fast becoming "more a pro litigant than a pro se litigant." Medina v. Hunt, 05-CV-1460, 2008 WL 4426748, at *2 (N.D.N.Y. Sept. 25, 2008) (Report-Recommendation of Lowe, M.J., adopted by Sharpe, J.); Zimmerman v. Burge, 06-CV-0176, 2008 WL 850677, at *10 (N.D.N.Y. March 28, 2008) (Report-Recommendation of Lowe, M.J., adopted by Sharpe, J.). What is more, he is fast becoming an abusive litigant. If this trend continues, Plaintiff may well be directed to show cause as to why he should not be barred from filing any future pro se actions in this Court without prior leave of the Court, pursuant to 28 U.S.C. § 1651(a) and the Court's inherent authority to manage its docket so as to prevent abuse in its proceedings.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 4) 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 Peebles' Report-Recommendation (Dkt. No. 4); and it is further
ORDERED that, in the event that Plaintiff files an Amended Complaint within thirty (30) days of the date of this Decision and Order, the Clerk of the Court is directed to return the file to Magistrate Judge Peebles for further review.
The Court hereby certifies, for purposes of 28 U.S.C. § 1915(a)(3), that any appeal taken from the Court's final judgment in this action would not be taken in good faith.