MacInerney, PhD v. Allen, No. 5:2021cv00818 - Document 7 (N.D.N.Y 2021)

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 Court DISMISS WITH LEAVE TO REPLEAD Plaintiffs Complaint (Dkt. No. 1) for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and because the Court lacks subject matter jurisdiction; and it is further ORDERED, that upon the filing of an amended complaint as directed above, the Clerk shall return the file to the Court for further review; an d it is further ORDERED, that in the event Plaintiff fails to file an amended complaint within thirty (30) days of the filing date of this Order, the Clerk shall enter judgment dismissing this action due to Plaintiffs failure to comply with the terms of this Order, without further order of the Court. Signed by Senior Judge Lawrence E. Kahn on September 22, 2021. (Copy served via regular mail)(sas)

Download PDF

MacInerney, PhD v. Allen Doc. 7 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK PETER MacINERNEY, PhD, Plaintiff, -against- 5:21-CV-0818 (LEK/ML) WILBER ALLEN, Defendant. DECISION AND ORDER I. INTRODUCTION Plaintiff Peter MacInerney brings this pro se action against defendant Wilber Allen. Plaintiff commenced this action on July 16, 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 12, 2021, the Honorable Miroslav Lovric, United States Magistrate Judge, granted the IFP Application and recommended that Plaintiff’s Complaint be dismissed with leave to amend. See Dkt. No. 4 (“Report-Recommendation”) at 1. No objections to the ReportRecommendation have been filed in this case. See Docket. For the reasons discussed below, the Court adopts the Report-Recommendation in its entirety, and Plaintiff will have thirty-days to file an amended complaint. II. BACKGROUND A. Factual History Plaintiff’s factual allegations are detailed in Judge Lovric’s Report-Recommendation, familiarity with which is assumed. See R. & R. at 1–2. 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 report-recommendation 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-CV789, 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). IV. DISCUSSION 2 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, except that the Court will specify that Plaintiff has to file an amended complaint within thirty (30) days of this Order. 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 WITH LEAVE TO REPLEAD Plaintiff’s Complaint (Dkt. No. 1) for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and because the Court lacks subject matter jurisdiction; and it is further ORDERED, that upon the filing of an amended complaint as directed above, the Clerk shall return the file to the Court for further review; and it is further ORDERED, that in the event Plaintiff fails to file an amended complaint within thirty (30) days of the filing date of this Order, the Clerk shall enter judgment dismissing this action due to Plaintiff’s failure to comply with the terms of this Order, without further order of the Court; 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: September 22, 2021 Albany, New York 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.