Opinion
3:13-CV-153 (FJS/DEP)
08-13-2014
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.
APPEARANCES TIMOTHY A. BARON Oneonta, New York 13820 Plaintiff pro se LEMIRE JOHNSON, LLC P. O. Box 2485 2534 Route 9 Malta, New York 12020 Attorneys for Defendant Miller OFFICE OF NEW YORK STATE ATTORNEY GENERAL The Capitol Albany, New York 12224 Attorneys for Defendants West and Lakomski CORRIGAN, McCOY & BUSH, PLLC 220 Columbia Turnpike Rensselaer, New York 12144 Attorneys for Defendant Foothills Performing Arts Center, Inc. OF COUNSEL GREGG T. JOHNSON, ESQ. APRIL J. LAWS, ESQ. MARY E. KISSANE, ESQ. TIMOTHY J. HIGGINS, ESQ. AARON M. BALDWIN, AAG SCOTT W. BUSH, ESQ.
APPEARANCES
TIMOTHY A. BARON
Oneonta, New York 13820
Plaintiff pro se
LEMIRE JOHNSON, LLC
P. O. Box 2485
2534 Route 9
Malta, New York 12020
Attorneys for Defendant Miller
OFFICE OF NEW YORK STATE
ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants West and Lakomski
CORRIGAN, McCOY & BUSH, PLLC
220 Columbia Turnpike
Rensselaer, New York 12144
Attorneys for Defendant Foothills Performing
Arts Center, Inc.
OF COUNSEL
GREGG T. JOHNSON, ESQ.
APRIL J. LAWS, ESQ.
MARY E. KISSANE, ESQ.
TIMOTHY J. HIGGINS, ESQ.
AARON M. BALDWIN, AAG
SCOTT W. BUSH, ESQ.
SCULLIN, Senior Judge
ORDER
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. § 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.
Dated: August 13, 2014
Syracuse, New York
/s/_________
Frederick J. Scullin, Jr.
Senior United States District Court Judge