Smith et al v. Bush et al, No. 5:2018cv01252 - Document 8 (N.D.N.Y 2018)

Court Description: DECISION AND ORDERED, that the Report-Recommendation (Dkt. No. 4) is APPROVED and ADOPTED in its entirety; and it is further ORDERED, that the Complaint is DISMISSED in its entirety with prejudice with respect to Plaintiffs Smith and Children Rainbow #s, and it is further ORDERED, that the Complaint is DISMISSED in its entirety without prejudice with respect to Plaintiffs SLH, AIL, SJH, APH, and PIL. Signed by Senior Judge Lawrence E. Kahn on December 03, 2018. (Copy served via regular and certified mail)(sas)

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Smith et al v. Bush et al Doc. 8 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK RIKISHA S. SMITH, et al. Plaintiffs, -against- 5:18-CV-1252 (LEK/ATB) PRESIDENT GEORGE BUSH, et al., Defendants. DECISION AND ORDER I. INTRODUCTION This matter comes before the Court following a Report-Recommendation filed on November 1, 2018, by the Honorable Andrew T. Baxter, U.S. Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 4 (“Report-Recommendation”). II. LEGAL STANDARD Within fourteen days after a party has been served with a copy of a magistrate judge’s report-recommendation, the party “may serve and file specific, written objections to the proposed findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). If objections are timely filed, a court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” § 636(b). However, if no objections are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court need review that aspect of a report-recommendation only for clear error. Barnes v. Prack, No. 11-CV-857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07, 306 n.2 (N.D.N.Y. 2008), abrogated on other grounds by Widomski v. State Univ. of Dockets.Justia.com N.Y. at Orange, 748 F.3d 471 (2d Cir. 2014); see also Machicote v. Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011) (“[E]ven a pro se party’s objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate’s proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument.”). “A [district] judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” § 636(b). III. DISCUSSION No objections were filed in the allotted time period. Docket. Even if the Court were to consider Plaintiff Smith’s objection that was filed outside the allotted time period, Dkt. No. 5 (“Objection”), that Objection is so general (it consists of a collection of articles, webpages, and medical records with no explanation of their relevance to any of the Magistrate Judge’s findings or conclusions) that the Court still reviews the Report-Recommendation only for clear error. It finds none. IV. CONCLUSION Accordingly, it is hereby: ORDERED, that the Report-Recommendation (Dkt. No. 4) is APPROVED and ADOPTED in its entirety; and it is further ORDERED, that the Complaint is DISMISSED in its entirety with prejudice with respect to Plaintiffs Smith and Children Rainbow #s, and it is further ORDERED, that the Complaint is DISMISSED in its entirety without prejudice with respect to Plaintiffs SLH, AIL, SJH, APH, and PIL; and it is further 2 ORDERED, that the Clerk of the Court serve a copy of this Order on Plaintiffs in accordance with the Local Rules. IT IS SO ORDERED. DATED: December 03, 2018 Albany, New York 3

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