DS et al v Rochester City School District et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DS, an infant by and through her
Parent and Natural Guardian CS
and CS individually and on her own behalf, 	DECISION AND ORDER
Plaintiffs, 	6:19-CV-06528-EAW-MJP
v.
ROCHESTER CITY SCHOOL DISTRICT,
et al.,
Defendants.
On May 11, 2023, United States Magistrate Judge Mark W. Pedersen, to whom this
case was referred pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) (Dkt. 14), issued a Report
and Recommendation and Decision and Order (Dkt. 113) addressing Plaintiffs’ motion for
leave to amend the complaint filed on December 2, 2022 (Dkt. 93). While Judge Pedersen
largely granted Plaintiffs’ request, he issued a recommendation that the undersigned
dismiss Plaintiffs’ claims pursuant to 42 U.S.C. § 1983 against individual defendants in
their official capacities and that the undersigned also dismiss the Equal Protection claim
and Due Process claim asserted against proposed defendant Kwame Donko-Hanson.1
1 	Technically, the claims that Judge Pedersen recommended for dismissal were not
asserted but rather they were proposed claims in a proposed amended complaint. (See Dkt.
93-3). Therefore, it would be more appropriate to characterize the recommendation as one
for denying the motion for leave to amend as opposed to dismissing claims that have not
yet been asserted. 	However, in either case, it is appropriate for the magistrate judge to
make a recommendation to the district judge. See, e.g., Briggs v. Cnty. of Monroe, 215 F.
Supp. 3d 213, 215 (W.D.N.Y. 2016) (recommendation to deny leave to amend pleading as
futile is reviewed de novo).
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Pursuant to 28 U.S.C. § 636(b)(1), the parties had 14 days to file objections to the
Report and Recommendation. 	No objections were filed. 	The Court is not required to
review de novo those portions of a report and recommendation to which objections were
not filed. See Mario v. P&C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Where
parties receive clear notice of the consequences, failure [to timely] object to a magistrate’s
report and recommendation operates as a waiver of further judicial review of the
magistrate’s decision.”).
Notwithstanding the lack of objections, the Court has conducted a careful review of
the Report and Recommendation, as well as the prior proceedings in the case, and finds no
reason to reject or modify the Report and Recommendation of Magistrate Judge Pedersen.
Therefore, the Court accepts and adopts the Report and Recommendation. (Dkt. 113). For
the reasons set forth in the Report and Recommendation, the Court denies Plaintiffs’
request to amend the complaint to assert official capacity claims against the individual
defendants pursuant to § 1983 and to assert Equal Protection and Due Process claims
against Kwame Donko-Hanson.
SO ORDERED.
________________________________
ELIZABETH A. WOLFORD
Chief Judge
United States District Court
Dated: 	June 30, 2023
Rochester, New York
Case 6:19-cv-06528-EAW-MJP Document 119 Filed 06/30/23 Page 2 of 2