Johnston v. Bauer et al, No. 6:2023cv00975 - Document 15 (N.D.N.Y 2024)

Court Description: DECISION AND ORDER that Magistrate Judge Baxter's Report-Recommendation (Dkt. No. 7 ) is ACCEPTED and ADOPTED in its entirety. Plaintiff's motion to proceed in forma pauperis (Dkt. No. 2 ) is GRANTEd. The Clerk's Office shall re turn to Plaintiff funds in the amount of ONE HUNDRED FIFTY TWO DOLLARS AND ZERO CENTS ($152.00). Plaintiff's Complaint (Dkt. No. 1 ) is sua sponte DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Signed by U.S. District Judge Glenn T Suddaby on 2/6/2024. (Copy served upon plaintiff via regular mail. Copy provided to Finance Department.)(sal )

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Johnston v. Bauer et al Doc. 15 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________________ MATTHEW J. JOHNSTON, SR., Plaintiff, 6:23-CV-0975 (GTS/MJK) v. ROBERT L. BAUER, Judge, Oneida County Court; SCOTT McNAMARA, District Atty., Oneida Cty.’ TINA L. HARTWELL, Oneida Cty. Chief Pub. Defender; and ADAM T. TYKINSKI, Oneida Cty. Public Defender, Defendants. ________________________________________________ APPEARANCES: MATTHEW J. JOHNSTON, SR., 553204 Plaintiff, Pro Se CNY PC P.O. Box 300 Marcy, New York 13403 GLENN T. SUDDABY, United States District Judge DECISION and ORDER Currently before the Court, in this pro se civil rights action filed by Matthew J. Johnston, Sr. (“Plaintiff”) against Oneida County Court Judge Robert Bauer, District Attorney Scott McNamara, Oneida County Chief Public Defender Tina Hartwell, and Oneida County Public Defender Adam Tykinski (“Defendants”), are the following: (1) United States Magistrate Judge Andrew T. Baxter’s Report-Recommendation recommending that Plaintiff’s motion to proceed in forma pauperis be granted, and that Plaintiff’s Complaint be sua sponte dismissed with prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); and (2) Plaintiff’s Dockets.Justia.com Objection to the Report-Recommendation. (Dkt. Nos. 7, 14.)1 Even when it is construed with the utmost of special liberality, Plaintiff’s Objection fails to set forth a specific challenge to any portion of Magistrate Judge Baxter’s ReportRecommendation. (Compare Dkt. No. 14 with Dkt. No. 7.)2 As a result, the Court needs to subject the Report-Recommendation to only a clear-error review.3 After carefully reviewing the relevant papers herein, including Magistrate Judge Baxter’s thorough Report-Recommendation, the Court can find no clear error in the ReportRecommendation: Magistrate Judge Baxter employed the proper standards, accurately recited the 1 On January 5, 2024, approximately seven weeks after Magistrate Judge Baxter issued his Report-Recommendation, this action was reassigned to United States Magistrate Judge Mitchell J. Katz because of Magistrate Judge Baxter’s retirement. (Dkt. No. 13.) 2 When a specific objection is made to a portion of a magistrate judge's reportrecommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be "specific," the objection must, with particularity, "identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection." N.D.N.Y. L.R. 72.1(c); see also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Although Mario filed objections to the magistrate's report and recommendation, the statement with respect to his Title VII claim was not specific enough to preserve this claim for review. The only reference made to the Title VII claim was one sentence on the last page of his objections, where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.' This bare statement, devoid of any reference to specific findings or recommendations to which he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title VII claim."). 3 When no specific 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 t 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 facts, and reasonably applied the law to those facts. (Dkt. No. 7.) As a result, the ReportRecommendation is accepted and adopted in its entirety for the reasons set forth therein. To those reasons, the Court adds only that it would reach the same conclusion even if it were to subject the Report-Recommendation to a de novo review. ACCORDINGLY, it is ORDERED that Magistrate Judge Baxter’s Report-Recommendation (Dkt. No. 7) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Plaintiff’s motion to proceed in forma pauperis (Dkt. No. 2) is GRANTED; and it is further ORDERED that the Clerk’s Office shall return to Plaintiff funds in the amount of ONE HUNDRED FIFTY TWO DOLLARS AND ZERO CENTS ($152.00);4 and it is further ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is sua sponte DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Dated: February 6, 2024 Syracuse, New York 4 After filing his application to proceed in forma pauperis, on September 11, 2023, Plaintiff submitted to the Clerk’s Office payment in the amount of $50.00 for copying fees related to the service of his Complaint. (Dkt. Nos. 4, 6, and 8.) Subsequently, on October 19, 2023, Plaintiff submitted to the Clerk’s Office payment in the amount of $452.00 in filing fees. To date, a total of $502.00 has been paid to the Court by Plaintiff. The Court’s filing fee for prisoner action is $350.00 with the $52.00 administrative fee being waived. For these reasons, the Clerk’s Office is directed to return funds to Plaintiff in the amount of $152.00. 3

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