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Baron v. Miller

United States District Court, N.D. New York

August 13, 2014

TIMOTHY A. BARON, Plaintiff,
v.
DICK MILLER, in his official capacity as city Mayor, of the City of Oneonta, in his official capacity as President of the Board of Foothills Performing Center, Inc., of Oneonta, New York and in his individual capacity; TIMOTHY WEST, JR., New York State Trooper, in his individual capacity; JACOB LAKOMSKI, New York State Trooper, in his individual capacity; and FOOTHILLS PERFORMING ARTS CENTER, INC., Defendants.

TIMOTHY A. BARON, Oneonta, New York, Plaintiff pro se,

GREGG T. JOHNSON, ESQ., APRIL J. LAWS, ESQ., MARY E. KISSANE, ESQ., TIMOTHY J. HIGGINS, ESQ., LEMIRE JOHNSON, LLC, Malta, New York Attorneys for Defendant Miller.

AARON M. BALDWIN, AAG, OFFICE OF NEW YORK STATE, ATTORNEY GENERAL, Albany, New York, Attorneys for Defendants West and Lakomski.

SCOTT W. BUSH, ESQ., CORRIGAN, McCOY & BUSH, PLLC, Rensselaer, New York, Attorneys for Defendant Foothills Performing Arts Center, Inc.

ORDER

FREDERICK J. SCULLIN, Jr., Senior District Judge.

Currently before the Court is Magistrate Judge Peebles' April 29, 2014 Report and Recommendation, see Dkt. No. 68, and Plaintiff's objections thereto, see Dkt. No. 69.

After reviewing a magistrate judge's recommendations, the district court may accept, reject or modify those recommendations. See 28 U.S.C. ยง 636(b)(1). The court reviews de novo those portions of the magistrate judge's recommendations to which a party objects. See Pizzaro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y. 1991). ""If, however, the party makes only conclusory or general objections, ... the Court reviews the Report and Recommendation only for clear error."'" Salmini v. Astrue, No. 3:06-CV-458, 2009 WL 179741, *1 (N.D.N.Y. June 23, 2009) (quoting [ Farid v. Bouey, 554 F.Supp.2d 301] at 306 [(N.D.N.Y. 2008)] (quoting McAllan v. Von Essen, 517 F.Supp.2d 672, 679 (S.D.N.Y. 2007))). Finally, even if the parties file no objections, the court must ensure that the face of the record contains no clear error. See Wilds v. United Parcel Serv., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003) (quotation omitted).

In light of Plaintiff's conclusory objection to Magistrate Judge Peebles' recommendations, the Court has reviewed Magistrate Judge Peebles' April 29, 2014 Report and Recommendation for clear error; and, finding none, the Court hereby

ORDERS that Magistrate Judge Peebles' April 29, 2014 Report and Recommendation is ACCEPTED in its entirety for the reasons stated therein; and the Court further

ORDERS that Defendants' motions to dismiss, see Dkt. Nos. 9, 12, 23, are GRANTED; and the Court further

ORDERS that the following of Plaintiff's claims are DISMISSED with leave to replead: (1) section 1983 claims against all Defendants, including the conspiracy claim asserted against all Defendants and the equal protection claim asserted against the Trooper Defendants; (2) section 1981 claims against the City Defendants and Defendant Foothills; and (3) sections 2000 and 2000a-2 claims against Defendant Foothills; and the Court further

ORDERS that Plaintiff's CAT claim and his claims arising under section 2000a and 2000a-2, insofar as they seek monetary relief, are DISMISSED with prejudice; and the Court further

ORDERS that the City Defendants' motion to strike certain portions of the amended complaint, see Dkt No. 9, is DENIED; and the Court further

ORDERS that Plaintiff's motion for leave to amend, see Dkt. No. 24, is GRANTED in part, and Plaintiff is permitted to submit a revised second amended complaint for filing within thirty (30) days of the date of this Order, subject to dismissal of all claims on behalf of Plaintiff Nuphlo Entertainment, Inc., as well as those claims dismissed with prejudice; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.


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