Opinion
00 CV 4964 (WK)(RLE)
June 19, 2003
ORDER
On September 8, 2000, I referred the above captioned matter to Magistrate Judge Ellis. On April 25, 2003, Judge Ellis issued a Report Recommendation (the "Report") recommending that Defendants' motion to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure be granted. Timely objections were filed by both parties.
In reviewing a report and recommendation, a court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C). W here no timely objection has been made, "a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith (S.D.N.Y. 1985) 618 F. Supp. 1186, 1189; see also Pizarro v. Bartlett (S.D.N.Y. 1991) 776 F. Supp. 815, 817. A reviewing court is required to make a de novo determination as to the aspects of a report and recommendation to which objections are made. United States v. Male Juvenile (2d Cir. 1997) 121 F.3d 34, 38. Where a party makes only "conclusory or general objections, the court reviews the report and recommendation for clear error." Parker v. Johnson (S.D.N.Y. Sept. 6, 2001) No. 99 Civ. 11805, 2001 WL 1029418, *1; Camardo v. General Motors Hourly-Rate Employees Pension Plan (W.D.N.Y. 1992) (court need not consider objections which are frivolous, conclusive, or general and constitute a rehashing of the same arguments and positions taken in original pleadings); see also Fed.R.Civ.P. 72(b) advisory committee's note (when no specific, written objections are filed, "the court need only satisfy itself that there is no clear error on the fact of the record in order to accept the recommendation."). Where, as here, the petitioner is pro se, "leniency is generally accorded." Vasquez v. Reynolds (S.D.N.Y. Mar. 18, 2002) No. 00 Civ. 0862, 2002 WL 417183, *5 (citation omitted).
Plaintiff filed his written objections to the R eport on August 15, 2003. He asserts that (1) Eleventh Amendment immunity does not apply to ADEA claims (Pl.'s Written Objections to the Report and Recommendation (hereinafter (Pl.'s Obj.) 1-2); (2) "the Report focused solely on Age discrimination and made no mention about the charge of discrimination because of race" (Pl.'s Obj. 3); (3) the Report erroneously states that plaintiff failed to state the position he sought (Pl.'s Obj. 3); and (4) the local rules pertaining to motions to dismiss should have been followed on this motion to dismiss (Pl.'s Obj. 3). Even according Plaintiff the leniency due a pro se plaintiff, I can only conclude that each of these objections is wholly without merit. Given this, Plaintiff's objections merit only a clear error review of the Report. In the interest of fairness, however, the Court has conducted a de novo review and finds the Report to be a sound analysis of Plaintiff's claims. I conclude that Judge Ellis' findings are correct, and hereby adopt the Report in its entirety. Accordingly, Defendant's motion to dismiss is GRANTED.
The applicable law regarding the Eleventh Amendment is well-settled and carefully detailed in the Report. (See Report 3-5.) It is beyond dispute that Fed.R.Civ.P. 56 and the local rules appurtenant thereto are inapplicable to this Rule 12(b) motion. Third, a review of Plaintiff's submissions — including his Objections — indicates that he did indeed fail to state the position he sought. (See, e.g., Pl.'s Obj. 3.) Finally, Judge Ellis discusses both Plaintiff's age and race claims throughout the report, nullifying Plaintiff's third objection. (See Report 7-8.)
SO ORDERED.