Strauss v. Dwyer, No. 1:2021cv00414 - Document 5 (N.D.N.Y 2021)

Court Description: DECISION AND ORDER adopting Report and Recommendations. 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 Court DISMISS WITHOUT PREJUDICE and WITHOUTLEAVE TO AMEND Plaintiff's Complaint (Dkt. No. 1) because the Court lacks subject matter jurisdiction. Signed by Senior Judge Lawrence E. Kahn on October 1, 2021. (Copy served via regular mail)(ztc, )

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Strauss v. Dwyer Doc. 5 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ZACHARY STRAUSS, Plaintiff, -against- 1:21-CV-0414 (LEK/CFH) MICHAEL L. DWYER, Defendant. DECISION AND ORDER I. INTRODUCTION Plaintiff Zachary Strauss brings this pro se action against defendant Michael Dwyer. Plaintiff commenced this action on April 12, 2021. See Dkt. No. 1 (“Complaint”). On the same day, Plaintiff filed an application to proceed in forma pauperis (“IFP Application”). See Dkt. No. 2. On August 17, 2021, the Honorable Christian Hummel, United States Magistrate Judge, granted the IFP Application and recommended that Plaintiff’s Complaint be dismissed without prejudice and without leave to amend. See Dkt. No. 4 (“Report-Recommendation”) at 1. No objections to the Report-Recommendation have been filed in this case. See Docket. For the reasons discussed below, the Court adopts the Report-Recommendation in its entirety. II. BACKGROUND A. Factual History Plaintiff’s factual allegations are detailed in Judge Hummel’s Report-Recommendation, familiarity with which is assumed. See R. & R. at 4–6. Dockets.Justia.com III. 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); see also L.R. 72.1(c). 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.” 28 U.S.C. § 636(b)(1). 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 reportrecommendation only for clear error. See Barnes v. Prack, No. 11-CV-857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); see also Demuth v. Cutting, No. 18-CV-789, 2020 WL 950229, at *2 (N.D.N.Y. Feb. 27, 2020) (Kahn, J.). “[I]t is established law that a district judge will not consider new arguments raised in objections to a magistrate judge’s report and recommendation that could have been raised before the magistrate but were not.” Zhao v. State Univ. of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (internal quotation marks and citation omitted); see also Hubbard v. Kelley, 752 F. Supp. 2d 311, 312–13 (W.D.N.Y. 2009) (“In this circuit, it is established law that a district judge will not consider new arguments raised in objections to a magistrate judge’s report and recommendation that could have been raised before the magistrate but were not.”) (internal quotation marks omitted). “A [district] judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” § 636(b). 2 IV. DISCUSSION Plaintiff did not file objections to the Report-Recommendation. See Docket. Consequently, the Court reviews the Report-Recommendation for clear error and finds none. Therefore, the Court adopts the Report-Recommendation in its entirety. V. 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 Court DISMISS WITHOUT PREJUDICE and WITHOUT LEAVE TO AMEND Plaintiff’s Complaint (Dkt. No. 1) because the Court lacks subject matter jurisdiction; and it is further ORDERED, that the Clerk of the Court shall serve a copy of this Decision and Order on all parties in accordance with the Local Rules. IT IS SO ORDERED. DATED: October 1, 2021 Albany, New York LAWRENCE E. KAHN United States District Judge 3

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