Maki v. State of New York ( 2015 )

14-897
Maki v. State of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 12th day of March, two thousand fifteen.
PRESENT:
RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
Frank D. Maki,
Plaintiff-Appellant,
v.
No. 14-897
State of New York, State of New York
Department of Health Office of Professional
Medical Conduct, Justice Jonathan Lippman,
Justice Karen K. Peters, Justice Edward O.
Spain, Justice Elizabeth A. Garry, John C. Egan,
Jr., Justice William E. McCarthy, Eugene
Peckham, Deborah Goodrich, Shawn Nash,
Bassett Healthcare, Dr. Shannon Conrad, Dr.
James Leonardo,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFF-APPELLANT: Frank D. Maki, pro se, Walton, NY.
FOR DEFENDANTS-APPELLEES: Kate H. Nepveu, Assistant Solicitor General, for Eric T.
Schneiderman, Attorney General of the State of New
York, Albany, NY; Shawn F. Brousseau, Napierski,
VanDenburgh, Napierski & O’Connor LLP, Albany,
NY, for Bassett Healthcare, Shannon Conrad, and James
Leonardo; Thomas J. O’Connor, Napierski,
VanDenburgh, Napierski & O’Connor LLP, Albany,
NY and Shawn T. Nash, pro se, Albany, NY, for Shawn
Nash.
Appeal from a judgment of the United States District Court for the Northern District of
New York (Suddaby, J., Peebles, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Frank D. Maki, proceeding pro se, appeals the district court’s sua sponte
dismissal of his complaint on the recommendation of the assigned magistrate judge. We assume
the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues
on appeal.
We review de novo a district court’s sua sponte dismissal of a complaint. Sykes v. Bank of
Am., 723 F.3d 399, 403 (2d Cir. 2013). The complaint must plead “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
claim will have “facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Pro se complaints are to “be construed liberally and interpreted
to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and emphasis omitted).
Maki correctly observes that before the district court adopted the magistrate judge’s
recommendation to dismiss his complaint, he was entitled to de novo review of those portions of
the magistrate judge’s report to which he objected. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b). Although the phrasing of the district court’s order suggests that it may have reviewed the
report and recommendation only for clear error, even assuming the court applied the incorrect
standard of review, that error was harmless because our independent and de novo review of the
entire record reveals that the magistrate judge’s recommendations were correct and Maki’s
objections were without merit. See Finkel v. Romanowicz, 577 F.3d 79, 84 n.7 (2d Cir. 2009).
We therefore affirm for substantially the same reasons stated by the magistrate judge in his
thorough December 5, 2013 report and recommendation.
We have considered all of Maki’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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