DECISION and ORDER On December 15, 2023, Magistrate Judge Miroslav Lovric issued a Report-Recommendation, which recommends that the pro se complaint of David C. Lettieri (“Lettieri” or “plaintiff”) be sua sponte dismissed without prejudice and without prior leave to replead. (Dkt. No. 11.) Pending is Lettieri’s objection to the Report-Recommendation. (Dkt. No. 13.) For the reasons set forth below, the Report-Recommendation is adopted as amended by this Decision and Order. Lettieri commenced this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against Federal Bureau of Investigation (“FBI” or “defendant”) in connection with the allegedly unconstitutional seizure of “cell phones.” (Dkt. No. 1 at 12 [Compl].) The complaint references, by name, two agents, presumably of the FBI, who allegedly took the cell phones at issue outside of the scope of a search warrant. (Id.) Lettieri seeks return of the seized property and money damages. (Id. at 5.) The Report-Recommendation liberally interpreted the complaint as asserting two claims pursuant to Bivens: (1) a violation of the Fourth Amendment as a result of an unlawful search and seizure; and (2) a violation of the Fifth Amendment Due Process Clause. (Dkt. No. 11 at 3.)1 Because the only named defendant was FBI, a government agency that is immune from suit, the Report-Recommendation recommended dismissal without leave to amend. (Id. at 6-8.) Lettieri now objects to the Report-Recommendation, contending only that, prior to dismissal, he should be permitted leave to amend his complaint, ostensibly to name certain individuals as defendants. (Dkt. No. 13.) I. STANDARD OF REVIEW When a specific objection is made to a portion of a magistrate judge’s report-recommendation, 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).2 When performing such a de novo review, “[t]he judge may…receive further evidence….” 28 U.S.C. §636(b)(1)(C). However, a district court will ordinarily refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance.3 Similarly, a district court will ordinarily refuse to consider argument that could have been, but was not, presented to the magistrate judge in the first instance. See Zhao v. State Univ. of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[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.”) (internal quotation marks and citation omitted); 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 and citations omitted). When only a general objection is made to a portion of a magistrate judge’s report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition; see Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff’d without opinion, 175 F.3d 1007 (2d Cir. 1999). Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.4 Finally, when no objection is made to a portion of a report-recommendation, the Court subjects that portion of the 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.5 After conducting the appropriate review, the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §636(b)(1)(C). II. ANALYSIS After carefully considering the matter, the Court can find no clear error with regard to any portion of the Report-Recommendation to which Plaintiff has not specifically objected. With regard to the portion of the Report-Recommendation to which Plaintiff has specifically objected (i.e., the portion recommending that the dismissal of Plaintiff’s complaint be without prior leave to amend), the Court finds that — in light of Plaintiff’s stated intent to name the individual FBI agents responsible for the wrongs he alleges (Dkt. No. 13), and out of an abundance of caution due Lettieri’s pro se status — he should be afforded an opportunity to amend his complaint before it is dismissed without prejudice. Indeed, as correctly observed by Magistrate Judge Lovric, although it is plain that Lettieri cannot maintain his claims against FBI, he may be able to amend his complaint to name individual defendants who are amenable to suit in their individual capacities. (Dkt. No. 11, at 6-7.) See also Rivera v. Fed. Bureau of Investigation, No. 5:16-CV-00997, 2016 WL 6081435, at *4 (N.D.N.Y. Sept. 13, 2016) (Dancks, M.J.) (“The only remedy available in a Bivens action is an award of monetary damages from defendants in their individual capacities.”) (citing Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484-86 [1994]), report and recommendation adopted, 2016 WL 6072392 (N.D.N.Y. Oct. 17, 2016) (Mordue, J.). The Court hastens to add, however, that any amended complaint will replace plaintiff’s original complaint in its entirety, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court. ACCORDINGLY, it is ORDERED that the Order and Report-Recommendation (Dkt. No. 11) is ADOPTED as amended by this Decision and Order; and it is further ORDERED that Lettieri’s complaint (Dkt. No. 1) SHALL BE sua sponte DISMISSED without prejudice and without further Order of the Court, UNLESS, within THIRTY (30) DAYS of the entry of this Decision and Order, Plaintiff files an AMENDED COMPLAINT that cures the pleading defects identified in his original Complaint; and it is further ORDERED that, should Plaintiff file a timely amended complaint, it shall be automatically referred to Magistrate Judge Lovric for his review. Dated: May 22, 2024
