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Syfert v. City of Rome

United States District Court, N.D. New York

November 9, 2017

MARK SYFERT, Plaintiff,
v.
CITY OF ROME, Defendant.

          MARK SYFERT Plaintiff, Pro

          DECISION AND ORDER

          GLENN T. SUDDABY, Chief United States District Judge

         Currently before the Court, in this pro se civil rights action filed by Mark Syfert (“Plaintiff”) against the City of Rome, New York (“Defendant” and/or “Rome”) pursuant to 42 U.S.C. §§ 1983 and 1985, are the following: (1) United States Magistrate Judge Thérèse Wiley Dancks' Report-Recommendation recommending that Plaintiff's Complaint be dismissed in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) but that his time-barred claims, his conspiracy claims relating to those time-barred claims, and his municipal-liability claims pursuant to Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658 (1978) be dismissed with leave to amend; and (2) Plaintiff's Objection to the Report-Recommendation. (Dkt. Nos. 4, 6.) For the reasons set forth below, Magistrate Judge Dancks' Report-Recommendation is accepted and adopted in its entirety.

         I. RELEVANT BACKGROUND

         A. Magistrate Judge Dancks' Report-Recommendation

         Generally, in her Report-Recommendation, Magistrate Judge Dancks rendered the following findings of fact and/or conclusions of law: (1) Plaintiff's claims based on mistreatment by officials of the City of Rome, claims based on the City of Rome's code enforcement policies and procedures, claims based on the City of Rome's plumbing and plumber licensing policies and procedures, and claims for conspiracy related to any of those claims, based on events occurring before May 24, 2014, should be dismissed as time-barred but Plaintiff should be given an opportunity to amend his Complaint so that Plaintiff may correct the pleading defects in those claims; (2) Plaintiff claims for malicious prosecution, claims for violation of his right to a speedy trial, and claims for conspiracy related to those claims should be dismissed with prejudice for failure to state a claim; and (3) Plaintiff's municipal-liability claims pursuant to Monell should be dismissed for failure to state a claim but again he should be given an opportunity to amend his Complaint so that Plaintiff may correct the pleading defects in those claims. (Dkt. No. 4, at Part IV.)

         B. Plaintiff's Objection to the Report-Recommendation

         Generally, in his Objections, Plaintiff asserts the following arguments: (1) his so-called time-barred claims should not be dismissed because he was not in possession of, or aware of, the zoning board minutes from 1984 until he submitted a Freedom of Information-Act request in early 2017, and that evidence was critical to the allegations against him and could have expedited resolution of the charges against him; (2) his malicious prosecution claims, speedy trial claims, and related conspiracy claims should not be dismissed because (a) while the lower court hearing was favorable to him and the third floor of the house was reinstated on the legal property description, the third floor apartment is still considered illegal as a rental unit and he could therefore be subject to future litigation, and (b) Defendant violated his constitutional due process rights by dismissing his case and denying him the right to trial; and (3) his municipal-liability claims should not be dismissed because (a) his plumbing business was subject to unfair competition and discrimination while seeking permits and bids on contract work from the City, and new policies were implemented by the City and the codes enforcement officer that directly hurt his plumbing business, and (b) despite 20 years of experience, he was not considered for the City's position of plumbing inspector as a result of Defendant's false allegations. (Dkt. No. 6.)

         II. STANDARD OF REVIEW

         When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific, ” the objection must, with particularity, “identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c).[1]When performing such a de novo review, “[t]he judge may . . . receive further evidence. . . .” 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance.[2] Similarly, a district court will ordinarily refuse to consider argument that could have been, but was not, presented to the magistrate judge in the first instance. See Zhao v. State Univ. of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.”) (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F.Supp.2d 311, 312-13 (W.D.N.Y. 2009) (“In this circuit, it is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.”) (internal quotation marks omitted).

         When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b)(2), (3); Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999). Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.[3] Finally, when no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error 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.[4]

         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

         After carefully reviewing the relevant papers herein, including Magistrate Judge Dancks' thorough Report-Recommendation, the Court can find error in the Report-Recommendation, clear or otherwise.[5] Magistrate Judge Dancks employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the ...


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