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Larry A. Bratton v. Anita Fitzpatrick

October 3, 2012

LARRY A. BRATTON, PLAINTIFF,
v.
ANITA FITZPATRICK, COMM'R OF PERSONNEL, DEFENDANT.



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 Larry A. Bratton ("Plaintiff") against Anita Fitzpatrick ("Defendant"), is Magistrate Judge David E. Peebles' Report-Recommendation recommending that (1) Plaintiff's Amended Complaint be sua sponte dismissed with prejudicefor failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(b), and (2) the undersigned forward this case to Chief United States District Judge Gary L. Sharpe with the recommendation that an Anti-Filing Injunction Order be issued against Plaintiff. (Dkt. No. 5.) For the reasons set forth below, the Report-Recommendation is adopted and accepted in its entirety.

I. RELEVANT BACKGROUND

On January 30, 2012, Plaintiff filed a Complaint in this action. (Dkt. No. 1.) On April 6, 2012, the Court issued a Memorandum-Decision and Order granting Plaintiff leave to proceed in forma pauperis, but conditionally dismissing the action unless Plaintiff filed an Amended Complaint curing the pleading defects described by the Court within the Decision and Order. (Dkt. No. 3.)

On May 4, 2012, Plaintiff timely filed an Amended Complaint. (Dkt. No. 4.) Generally, and liberally construed, Plaintiff's Amended Complaint alleges that Defendant violated his due process rights and his right to equal protection by denying him employment based on his past criminal conviction. (See generally Dkt. No. 4.)

On May 22, 2012, Magistrate Judge Peebles issued a Report-Recommendation recommending that Plaintiff's Amended Complaint be dismissed with prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(b). (Dkt. No. 5 at 3.) More specifically, Magistrate Judge Peebles found that, because Plaintiff's Amended Complaint is nearly identical to Plaintiff's original Complaint (except for eliminating Tompkins County as a Defendant and eliminating his causes of action allegedly arising under 42 U.S.C. §§ 1985 and 1986), Plaintiff's Amended Complaint failed to rectify the pleading defects identified in the Court's Decision and Order dated April 6, 2012. (Id.) In addition, Magistrate Judge Peebles recommended that the undersigned forward this case to Chief Judge Sharpe with the recommendation that an Anti-Filing Injunction Order be issued against Plaintiff. (Id.)

Plaintiff has not submitted an objection to the Report-Recommendation, and the time in which to do so has expired. (See generally Docket Sheet.)

II. RELEVANT LEGAL STANDARD

When no objection is made to a Report-Recommendation, the Court subjects the Report-Recommendation to a clear-error standard of 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.*fn1 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).

III. ANALYSIS

A. Recommendation Regarding Dismissal of Plaintiff's Amended Complaint

After carefully reviewing Plaintiff's Amended Complaint and Magistrate Judge Peebles' Report-Recommendation, the Court can find no clear error in that portion of the Report-Recommendation recommending that Plaintiff's Amended Complaint be dismissed with prejudice. As a result, the Court adopts that portion of the Report-Recommendation, for the reasons stated therein. (Dkt. No. 5.)

The Court would add only that granting a pro se civil rights plaintiff an opportunity to amend his or her pleading before dismissing that pleading for failure to state a claim s not required where, as here, the plaintiff has already been afforded the opportunity to amend his or her pleading. Abascal v. Hilton, 04-CV-1401, 2008 WL 268366, at *8 (N.D.N.Y. Jan. 13, 2008) (Kahn, J., adopting, on de novo review, Report-Recommendation by Lowe, M.J.) ("Of course, granting a pro se plaintiff an opportunity to amend is not required where the plaintiff has already been given a chance to amend his pleading."), aff'd, 357 F. App'x 388 (2d Cir. 2009); accord, Shuler v. Brown, 07-CV-0937, 2009 WL 790973, at *5 & n.25 (N.D.N.Y. March 23, 2009) (McAvoy, J., ...


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