Haydu v. United States Federal Government, No. 3:2012cv01425 - Document 7 (N.D.N.Y 2013)

Court Description: DECISION & ORDER denying accepting and adopting # 6 Magistrate Judge Peebles' Report-Recommendation in its entirety. Plaintiff's complaint is sua sponte dismissed with prejudice without further order of the Court unless, within 30 days of the date of this Decision & Order, Plaintiff submits an Amended Complaint that corrects the pleading defects in Magistrate Peebles' Report-Recommendation (Dkt. No. 6 ); and it is further ORDERED that in the event that Plaintiff files an Amende d Complaint within 30 days of the date of this Decision and Order, the Clerk of the Court shall to return the file to the Magistrate Judge for further review. It is further ORDERED that Plaintiffs motion for judgment as a matter of law (Dkt. No. 5 ) is DENIED without prejudice. Signed by Judge Glenn T. Suddaby on 3/6/13. (lmw) (Copy served upon pro se plaintiff via regular mail)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ CHRISTOPHER HAYDU, Plaintiff, 3:12-CV-1425 (GTS/DEP) v. U.S. FED. GOV T, Defendant. ________________________________________ APPEARANCES: OF COUNSEL: CHRISTOPHER HAYDU Plaintiff, Pro Se Box 292 Downsville, New York 13755 GLENN T. SUDDABY, United States District Judge DECISION and ORDER Currently before the Court, in the above-captioned tort action filed by Christopher Haydu ( Plaintiff ) against the United States Government, is United States Magistrate Judge David E. Peebles Report-Recommendation recommending (1) this action be sua sponte dismissed with prejudice for lack of subject-matter jurisdiction pursuant to 28 U.S.C. § 1915 unless, within 30 days of the date of the Order adopting the Report-Recommendation, Plaintiff timely files an Amended Complaint correcting the two pleading defects identified in Plaintiff s Complaint (which stem from the doctrines of sovereign immunity and standing), (2) Plaintiff s motion for judgment as a matter of law be denied without prejudice as premature, and (3) Plaintiff s motion for leave to file a Supplemental Complaint be denied as futile based on lack of standing. (Dkt. No. 6, at Part II.) Plaintiff has not filed an objection to the Report-Recommendation and the deadline in which to do so has expired. (See generally Docket Sheet.) When no objection is made to a report-recommendation, the Court subjects that reportrecommendation 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.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) ( I am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection is made, so long as those sections are not facially erroneous. ) (internal quotation marks and citations omitted). Here, based upon a careful review of this matter, the Court can find no error with Magistrate Judge Peebles Report-Recommendation, clear or otherwise. Magistrate Judge Peebles employed the proper standards, accurately construed Plaintiff s claims, and reasonably applied the law to those claims. (Dkt. No. 6.) As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons stated therein. (Id.) The Court would add only that, while ordinarily a plaintiff would have a right to file a supplemental complaint under the circumstances pursuant Fed. R. Civ. P. 15(a)(1), the Court would still retain (in cases where, as here, the plaintiff is proceeding in forma pauperis) the authority and indeed the duty to sua sponte dismiss that supplemental complaint for lack of standing, which authority the Court exercises here for the reasons offered by Magistrate Judge Peebles. ACCORDINGLY, it is ORDERED that Magistrate Judge Peebles Report-Recommendation (Dkt. No. 6) is ACCEPTED and ADOPTED in its entirety; and it is further 2 ORDERED that Plaintiff s Complaint (Dkt. No. 1) is sua sponte DISMISSED with prejudice without further Order of the Court unless, within THIRTY (30) DAYS of the date of this Decision and Order, Plaintiff submits an Amended Complaint that corrects the pleading defects identified in Magistrate Judge Peebles Report-Recommendation (Dkt. No. 6); and it is further ORDERED that, in the event that Plaintiff files an Amended Complaint within thirty (30) days of the date of this Decision and Order, the Clerk of the Court shall to return the file to the Magistrate Judge for further review; and it is further ORDERED that Plaintiff s motion for judgment as a matter of law (Dkt. No. 5) is DENIED without prejudice; and it is further ORDERED that Plaintiff s motion for leave to file a Supplemental Complaint (Dkt. No. 5) is DENIED. The Court hereby certifies, for purposes of 28 U.S.C. § 1915(a)(3), that any appeal taken from the Court's final judgment in this action would not be taken in good faith. Dated: March 6, 2013 Syracuse, New York 3

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