United States District Court, N.D. New York
CHARLES PAUL PROBST, 4TH Plaintiff pro se
D'Agostino, U.S. District Judge:
commenced this action pro se on February 7, 2017,
against Kathleen Jankowski. See Dkt. No. 1.
Plaintiff asserts a civil rights claim against Defendant
pursuant to 42 U.S.C. § 1983. See Id . In the
Complaint, Plaintiff asserts the sole allegation of a
"[f]alse restraining order due to no harm and
assault" against Defendant. Dkt. No. 1 at 2.
Plaintiff's prayer for relief requests that this Court
will "[c]lear record of arrest." Dkt. No. 1 at 4.
Magistrate Judge Stewart granted Plaintiff's application
to proceed in forma pauperis and in a
Report-Recommendation and Order dated March 23, 2017,
reviewed the sufficiency of the Complaint. See Dkt.
No. 5; see Dkt. No. 6. In his review, Magistrate
Judge Stewart was unable to discern what Constitutional right
has been violated or why the action was brought against the
named Defendant and, therefore, recommended a dismissal of
the complaint with Plaintiff provided the opportunity to
amend. See Dkt. No. 6 at 4-5.
a pro se case, the court must view the submissions
by a more lenient standard than that accorded to 'formal
pleadings drafted by lawyers.'" Govan v.
Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y. 2003)
(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972))
(other citations omitted). The Second Circuit has opined that
the court is obligated to "make reasonable allowances to
protect pro se litigants" from inadvertently
forfeiting legal rights merely because they lack a legal
education. Govan v. Campbell, 289 F.Supp.2d 289, 295
(N.D.N.Y. 2003) (quoting Traguth v. Zuck, 710 F.2d
90, 95 (2d Cir. 1983)).
party files specific objections to a magistrate judge's
report-recommendation, 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." 28 U.S.C. § 636(b)(1).
However, when a party declines to file objections or files
"[g]eneral or conclusory objections or objections which
merely recite the same arguments [that he presented] to the
magistrate judge, " the court reviews those
recommendations for clear error. O'Diah v.
Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y.
Mar. 16, 2011) (citations and footnote omitted); see
McAllan v. Von Essen, 517 F.Supp.2d 672, 679 (S.D.N.Y.
2007). After 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).
litigant's failure to file objections to a magistrate
judge's report-recommendation, even when that litigant is
proceeding pro se, waives any challenge to the
report on appeal. See Cephas v. Nash, 328 F.3d 98,
107 (2d Cir. 2003) ("As a rule, a party's failure to
object to any purported error or omission in a magistrate
judge's report waives further judicial review of the
point" (citation omitted)). A pro se litigant
must be given notice of this rule; notice is sufficient if it
informs the litigant that the failure to timely object will
result in the waiver of further judicial review and cites
pertinent statutory and civil rules authority. See Frank
v. Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small
v. Sec'y of Health and Human Servs., 892 F.2d 15, 16
(2d Cir. 1989) ("a pro se party's failure
to object to a . . . report and recommendation . . . does not
[waive his] right to appellate review . . . unless the
magistrate's report explicitly states that failure to
object . . . will preclude appellate review and specifically
cites 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and
[former] 6(e) of the Federal Rules of Civil Procedure").
present matter, Magistrate Judge Stewart provided Plaintiff
adequate notice that he was required to file any objections
to the Report-Recommendation and Order, and informed him that
failure to object to any portion of the report would preclude
his right to appellate review. See Dkt. No. 6 at 7.
Specifically, Magistrate Judge Stewart informed Plaintiff
that "FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN
(14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing
Small v. Sec'y of Health and Human Servs., 892
F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72 & 6(a)." See Id
. Magistrate Judge Stewart clearly provided plaintiff
with sufficient notice of the consequences of failing to
object to the Report-Recommendation and Order.
the notice provided by Magistrate Judge Stewart, Plaintiff
has failed to make any objection to the Report-Recommendation
and Order, and therefore, the standard of review is clear
error. Upon review of Magistrate Judge Stewart's
Report-Recommendation and Order, Plaintiff's submissions,
and the applicable law, the Court finds no clear error in
Magistrate Judge Stewart's recommendations and hereby
affirms and adopts the Report-Recommendation and Order as the
opinion of the Court. Additionally, in consideration of
Plaintiff's pro se status, the Court will afford
Plaintiff with the opportunity to amend his complaint to
sufficiently set forth a claim on which relief may be
the Court hereby
that Magistrate Judge Stewart's Report-Recommendation and
Order (Dkt. No. 6) is ADOPTED in its entirety; and the Court
that Plaintiffs complaint in this action is dismissed in all
respects, with leave to file an amended complaint within
thirty (30) days of the date of this Order; and the Court
that, if Plaintiff fails to file an amended complaint within
thirty (30) days of this Order, the Clerk of the Court shall
enter judgment in Defendant's favor and close this case,