Johnson v. Bieling et al, No. 5:2020cv01124 - Document 13 (N.D.N.Y 2021)
Court Description: DECISION AND ORDER that Magistrate Judge Lovric's Report-Recommendation (Dkt. No. 8 ) is ACCEPTED and ADOPTED in its entirety. The following claims asserted in Plaintiff's Complaint (Dkt. No. 1 ) are DISMISSED with prejudice and without leave to replead: (1) Plaintiff's claims against Defendant Burnettii; (2) Plaintiff's claims against Defendant Celie; (3) Plaintiff's claims against Defendant Nordon; (4) Plaintiff's claims against Defendant Cardan; and (5) Plaintiff's claims against Defendants Bieling, Mollica and Young in theirofficial capacities. The remaining claims asserted in Plaintiff's Complaint (Dkt. No. 1 )-i.e., Plaintiff's claims against Defendants Bieling, Mollica and Yo ung in their individual capacities for violation of the Due Process Clause, violation of the Equal Protection Clause, false arrest, excessive force, failure to intervene, unlawful search and seizure, and malicious prosecution-shall be DISMISSED w ith prejudice and without further Order of this Court UNLESS, within THIRTY (30) DAYS of the date of this Decision and Order, Plaintiff files an Amended Complaint that cures the pleading defects identified in the Report-Recommendation. Should Plaintiff file a timely Amended Complaint, it shall be referred to Magistrate Judge Lovric for his review. Signed by Chief Judge Glenn T. Suddaby on 5/7/2021. (Copy served upon plaintiff via regular mail) (sal)
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Johnson v. Bieling et al Doc. 13 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________ MARSHEEM JOHNSON, Plaintiff, 5:20-CV-1124 (GTS/ML) v. D. BIELING, Onondaga County Sheriff ‘s Officer; S. MOLLICA, Onondaga County Sheriff ‘s Officer; J.M. YOUNG, Sgt.; AUGUST NORDON, Public Defender; BURNETTII, Onondaga County Supreme Court Judge; CELIE, Onondaga County Drug Court Judge; and CLIFTON CARDAN, Public Defender, Defendants. _____________________________________________ APPEARANCES: MARSHEEM JOHNSON, 17-B-2753 Plaintiff, Pro Se Collins Correctional Facility P.O. Box 340 Collins, New York 14034 GLENN T. SUDDABY, Chief United States District Judge DECISION and ORDER Currently before the Court, in this pro se civil rights action filed by Marsheem Johnson (“Plaintiff”) against the seven above-captioned individuals (“Defendants”), is United States Magistrate Judge Miroslav Lovric’s Report-Recommendation recommending that certain of Plaintiff’s claims be dismissed with prejudice and that the remainder of those claims be dismissed without prejudice and with leave to replead. (Dkt. No. 8.) Plaintiff has not filed an objection to the Report-Recommendation, and the deadline by which to do so has expired. (See Dockets.Justia.com generally Docket Sheet.) After carefully reviewing the relevant papers herein, including Magistrate Judge Lovric’s thorough Report-Recommendation, the Court can find no clear-error in the ReportRecommendation.1 Magistrate Judge Lovric has employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the ReportRecommendation is accepted and adopted in its entirety for the reasons set forth therein.2 ACCORDINGLY, it is ORDERED that Magistrate Judge Lovric’s Report-Recommendation (Dkt. No.8) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that the following claims asserted in Plaintiff’s Complaint (Dkt. No. 1) are DISMISSED with prejudice and without leave to replead: (1) Plaintiff’s claims against Defendant Burnettii; (2) Plaintiff’s claims against Defendant Celie; (3) Plaintiff’s claims against Defendant Nordon; 1 When no objection is made to a report-recommendation, the Court subjects that report-recommendation 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 omitted). 2 The Court notes that on page 19 of the Report-Recommendation, in the last sentence of Part V.A.1.b.iv., the term “excessive force claims” is used instead of the term “unlawful search and seizure claims.” (Dkt. No. 8, at 19.) The Court construes that usage as a mere typographical error, given the fact that the section regards Plaintiff’s unlawful search and seizure claims (and the fact that the Report-Recommendation previously analyzed Plaintiff’s excessive force claims). 2 (4) Plaintiff’s claims against Defendant Cardan; and (5) Plaintiff’s claims against Defendants Bieling, Mollica and Young in theoirfficial capacities; and it is further ORDERED that the remaining claims asserted in Plaintiff’s Complaint (Dkt. No. 1)–i.e., Plaintiff’s claims against Defendants Bieling, Mollica and Young in their individual capacities for violation of the Due Process Clause, violation of the Equal Protection Clause, false arrest, excessive force, failure to intervene, unlawful search and seizure, and malicious prosecution–shall be DISMISSED with prejudice and without further Order of this Court UNLESS, within THIRTY (30) DAYS of the date of this Decision and Order, Plaintiff files an Amended Complaint that cures the pleading defects identified in the Report-Recommendation; and it is further ORDERED that, should Plaintiff file a timely Amended Complaint, it shall be referred to Magistrate Judge Lovric for his review. Dated: May 7, 2021 Syracuse, New York 3
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