United States District Court, E.D. New York
J. Feuerstein United States District Judge.
Florence Chichester ("Plaintiff) commenced this action
against Defendant New York State, Department of Education,
Adult Career and Continuing Education Services Vocational
Rehabilitation (ACCESS-VR) ("State" or
"Defendant") pursuant to Title H of the American
with Disabilities Act of 1990 ("ADA"), 42 U.S.C.
§§ 12132, 12133, alleging that Defendant's
"behavior or failure to act were [sic] the
result of discriminatory animus or ill will towards the
[P]laintiff on the basis of disability." (ECF No. 1;
hereafter, "Complaint".) Before discovery
commenced, Defendant sought and was granted permission to
file its motion to dismiss the action for lack of subject
matter jurisdiction. (See Docket Entry dated
12/29/2016.) On January31, 2017, the State's fully
briefed Motion to Dismiss (hereafter, "Motion") and
Plaintiffs Opposition (hereafter, "Opposition")
were filed (see ECF No. 20). The Motion was referred
to Magistrate Judge Steven I. Locke (see Docket
Entry dated 02/15/2017).
before the Court is Magistrate Judge Locke's Report and
Recommendation, dated June 15, 2017, that the State's
Motion be granted and the case be dismissed with
prejudice. (See ECF No. 22; hereafter,
"Report".) Plaintiff filed a letter objecting to
the Report. (See ECF No. 23; hereafter, the
"Objection".) The State filed a response to
Plaintiffs letter, asserting it was inadequate as an
objection. (See ECF No. 24; hereafter,
"Response".) After considering the Plaintiffs
Objection and the Defendant's Response, and for the
reasons that follow, the Court adopts the Report in its
entirety as to Plaintiffs first cause of action, the only
remaining cause of action in this case.
Standard of Review
of the Federal Rules of Civil Procedure permits a magistrate
judge to conduct proceedings of dispositive pretrial matters
without the consent of the parties. See Fed. R. Civ.
P. 72(b). Any portion of a report and recommendation on
dispositive matters to which a timely objection has been made
is reviewed de novo. See 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b). However, "when a party makes only
conclusory or general objections, or simply reiterates
the original arguments, the Court will review the report
strictly for clear error." Frankel v. City of
N.Y., Nos. 06-cv-5450, 07-cv-3436, 2009 WL 465645, at *2
(S.D.N.Y. Feb. 25, 2009) (emphasis added); see also Butto
v. Collecto, Inc., 290 F.R.D. 372, 379 (E.DN.Y.2013)
("In a case where a party makes only conclusory or
general objections, or simply reiterates his original
arguments, the Court reviews the Report and Recommendation
only for clear error." (quotations and citation
omitted)). The Court is not required to review the factual
findings or legal conclusions of the magistrate judge as to
which no proper objections are made. See Thomas v.
Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435
(1985). To accept the report and recommendation of a
magistrate judge on a dispositive matter to which no timely
objection has been made, the district judge need only be
satisfied that there is no clear error on the face of the
record. See Fed. R. Civ. P. 72(b); Johnson v.
Goord, 487 F.Supp.2d 377, 379 (S.D.N.Y. 2007),
aff'd, 305 F.App'x 815 (2d Cir. Jan. 9,
2009); Baptichon v. Nev. State Bank, 304 F.Supp.2d
451, 453 (E.D.N.Y. 2004), aff'd, 125 F.App'x
374 (2d Cir. Apr. 13, 2005). Whether or not proper objections
have been filed, the district judge may, after review,
accept, reject, or modify any of the magistrate judge's
findings or recommendations. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b).
objects to Magistrate Judge Locke's finding that
"(1) the court does not have subject matter
jurisdiction, (2) Title II of the ADA does not cover
employment discrimination, (3) New York Civil Service law
Section 55-b is not a program nor is a violation of said
statute covered by Title II of the ADA, and (4) New York
State is immune from this suit, " (Objection at 1.) For
the reasons that follow, the Court will review the Report
strictly for clear error.
Plaintiffs objection regarding the lack of subject matter
jurisdiction, she fails to make any argument in support
the Magistrate Judge's finding that Title II does not
cover her employment discrimination claims, Plaintiff directs
the Court to her arguments originally made in her Opposition
to the Motion. (See Objection at 1 ("As
detailed in the plaintiff s memorandum of law, Title II
of the ADA does cover the allegations raised by
plaintiff." (emphasis added; citing Opposition at 4-6).)
This ostensible objection is, in actuality, a reiteration of
Plaintiff s original statement that Title II of the ADA does
cover her claim of employment discrimination.
in supporting her objection to the Magistrate Judge's
finding that Section 55-b is not a Title II-covered program
(i.e., her third objection), Plaintiff twice directs
the Court to her original arguments made in her Opposition.
(See Objection at 2 ("The Court's attention
is also directed to page "4" of the Plaintiffs
Memorandum in Opposition in which it was argued that Title
II. . ."; and "It was also argued in the Memorandum
of Law that the plaintiff should have been protected under
this employment program conducted by New York State . .
.").) This is not an argument in support of an
objection, but a restatement of Plaintiff s original
Plaintiff states that she "cited case law on pages
"8"-"9" [of her Opposition]
confirming" her position that "courts have allowed
actions to proceed against New York State wherein it was
alleged that there was a violation of Title II of the
ADA". (Objection at 2.) At best, this is merely a
reiteration of Plaintiff s original argument.
Plaintiffs Objection presents conclusions or reiterations of
her original arguments, the Court reviews the Report strictly
for clear error. See Frankel, 2009 WL 465645, at *2;
Butto, 290 F.R.D. at 379. Upon such review, the
Court is satisfied that the Report is not facially erroneous.
IT IS HEREBY ORDERED that as to Plaintiffs first cause of
action, Magistrate Judge Locke's ...