United States District Court, N.D. New York
JAMES N. SCOTT, et al., Plaintiffs,
D. UHLER, et al., Defendants.
DECISION & ORDER
J. McAVOY, Senior United States District Judge
pro se action brought pursuant to 42 U.S.C. §
1983 was referred to the Hon. Christian F. Hummel, United
States Magistrate Judge, for a Report and Recommendation
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
February 8, 2017 Report-Recommendation and Order, Dkt. No.
47, Magistrate Judge Hummel recommends that defendants'
motion for dismissal (Dkt. No. 35) be granted, and that
plaintiffs be given thirty (30) days in which to file an
amended complaint. Plaintiffs Lawrence Elliott and James N.
Scott each filed objections to the recommendations. Dkt. Nos.
47 (Elliott's objection) and 49 (Scott's objections).
STANDARD OF REVIEW
objections to a magistrate judge's report and
recommendation are lodged, the district court makes a
“de novo determination of those portions of
the report or specified proposed findings or recommendations
to which objection is made.” See 28 U.S.C.
§ 636(b)(1); see also United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (The Court must
make a de novo determination to the extent that a
party makes specific objections to a magistrate's
findings.). “[E]ven a pro se party's
objections to a Report and Recommendation must be specific
and clearly aimed at particular findings in the
magistrate's proposal, such that no party be allowed a
second bite at the apple by simply relitigating a prior
argument.” Machicote v. Ercole, 2011 WL
3809920, at * 2 (S.D.N.Y., Aug. 25, 2011)(citations and
interior quotation marks omitted); DiPilato v. 7-Eleven,
Inc., 662 F.Supp.2d 333, 340 (S.D.N.Y. 2009)(same).
or conclusory objections, or objections which merely recite
the same arguments presented to the magistrate judge, are
reviewed for clear error. Farid v. Bouey, 554
F.Supp.2d 301, 306 n. 2 (N.D.N.Y. 2008); see Frankel v.
N.Y.C., 2009 WL 465645 at *2 (S.D.N.Y. Feb. 25, 2009).
After reviewing the report and recommendation, the Court may
“accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The
judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.” 28
U.S.C. § 636(b).
objection is wholly conclusory, stating only that he is
“writing [his] objection to the foregoing
report.” Dkt. No. 48. He offers no reason why any of
the conclusions or recommendations of Magistrate Judge Hummel
should not be adopted. See id. This
conclusory objection fails to point to any error, let alone
clear error, by Magistrate Judge Hummel. Moreover, as
discussed below with regard to Scott's objections, a
de novo review of the issues addressed by
Scott's objections leads the Court to adopt Magistrate
Judge Hummel's recommendations. Therefore, Elliott's
objection is overruled.
objections are, for the most part, simply a re-argument of
the issues presented to and reviewed by Magistrate Judge
Hummel. Like Elliott, Scott fails to point to clear error
committed by Magistrate Judge Hummel. Furthermore, having
considered Scott's objections and having completed a
de novo review of the issues raised by the
objections, the Court accepts and adopts Magistrate Judge
Hummel's recommendations for the reasons stated in his
only specific objection raised by Scott is an objection to
footnote 2 in Magistrate Judge Hummel's
Report-Recommendation and Order, stating that “Scott,
as a pro se litigant, ‘is not empowered to
proceed on behalf of anyone other than himself.'"
Rep. Rec. & Ord., p. 3, fn. 2 (quoting Khalil v.
Laird, 353 F.App'x 620, 621 (2d Cir. 2009)). Scott
asserts that he “oppose[s] this ruling due to the fact
that as the primary litigant, [he] initiated the original
complaint as a class action lawsuit, and not a class of one
as your Honor seems to imply.” Dkt. No. 51, p. 2.
Scott's objection is without merit. Whether he intended
to start this action as a class action is irrelevant. As
stated by Magistrate Judge Hummel, a pro se litigant
cannot proceed on behalf of anyone other than himself.
Furthermore, under Federal Rule of Civil Procedure 23 (g)(1),
the appointment of class counsel is a prerequisite to
certifying a class action of the type alleged in the
complaint. Because Scott, as a pro se litigant,
cannot proceed on behalf of anyone other than himself, he is
unable to serve as the class counsel required to prosecute
the instant action on behalf of a class of plaintiffs.
Accordingly, Scott's objections are, in all respects,
reasons discussed above, the Court accepts and adopts
Magistrate Judge Hummel's February 8, 2017
Report-Recommendation and Order, Dkt. No. 47, in its
entirety. Accordingly, defendants' motion for dismissal
(Dkt. No. 35) is GRANTED, and the Complaint is DISMISSED.
Plaintiffs are given leave of thirty (30) days in which to
file an amended complaint.
are advised that if they file an amended complaint, they must
properly allege in the amended complaint all factual bases
for all claims asserted therein. The failure to file an
amended complaint within this time frame will be deemed as an
abandonment of the dismissed claims, and a “with
prejudice” dismissal will be ...