adopting Report and Recommendation of Magistrate Judge George H. LoweSummary of this case from Chime ex rel. All Other Persons Similarly Situated v. Peak Sec. Plus, Inc.
September 20, 2010
This pro se action brought pursuant to 42 U.S.C. § 1983 was referred by this Court to the Hon. George H. Lowe, United States Magistrate Judge, for a Report-Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule N.D.N.Y. 72.3(c). Magistrate Judge Lowe issued a Report-Recommendation Order [dkt. # 4] in which he recommended that certain plaintiffs be dismissed and that Plaintiff file an amended complaint properly setting forth, in compliance with the dictates of Federal Rules of Civil Procedure 8 10, the remaining claims. Plaintiff filed objections to the recommendations. Dkt. # 6.
II. STANDARD OF REVIEW
When objections to a magistrate judge's report and recommendation are lodged, 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."See 28 U.S.C. § 636(b)(1)(C). General or conclusory objections, or objections which merely recite the same arguments presented to the magistrate judge, are reviewed for clear error. Farid v. Bouey, 554 F. Supp. 2d 301, 306 n. 2 (N.D.N.Y. 2008); see Frankel v. N.Y.C., 2009 WL 465645 at *2 (S.D.N.Y. Feb. 25, 2009). After reviewing the Report-Recommendation, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b)(1)(C).
The Southern District wrote in Frankel:
The Court must make a de novo determination to the extent that a party makes specific objections to a magistrate's findings. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). 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. See Pearson-Fraser v. Bell Atl., No. 01 Civ. 2343, 2003 WL 43367, at *1 (S.D.N.Y. Jan. 6, 2003); Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F.Supp. 380, 382 (W.D.N.Y. 1992). Similarly, "objections that are merely perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original [papers] will not suffice to invoke de novo review." Vega v. Artuz, No. 97 Civ. 3775, 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30, 2002).2009 WL 465645, at *2.
Having reviewed the Report-Recommendation Order [dkt. # 4] and Plaintiff's objections thereto [dkt. # 6], the Court adopts the Report-Recommendation Order in its entirety for the reasons stated therein.
Therefore, it is hereby
ORDERED that infants A.M.P., Y.A.P., A.A.P., and B.A.P., and First Corporate Security, LLC are DISMISSED as plaintiffs and any claims by or on behalf of these Plaintiffs are DISMISSED without prejudice; and it is further
ORDERED that Plaintiff William Praileau is not permitted to proceed as "next friend" of infants A.M.P., Y.A.P., A.A.P., and B.A.P., and the Clerk of the Court shall remove the phrase "next friend of his infant children A.M.P., Y.A.P., A.A.P. and B.A.P." from the description following Plaintiff William Praileau's name on the docket; and it is further
ORDERED that Plaintiff shall file an amended complaint in compliance with the dictates of Federal Rules of Civil Procedure 8 10, and that the amended complaint be filed within thirty (30) days of the date of this Decision and Order; and it is further
ORDERED that if Plaintiff fails to timely file an amended complaint, the Clerk shall enter judgment dismissing this action without further order of this Court due to Plaintiff's failure to comply with the terms of this Decision and Order; and it is further
ORDERED that upon the filing of Plaintiff's amended complaint, the file in this matter be returned to Magistrate Judge Lowe for further review.
IT IS SO ORDERED
Dated: September 18, 2010