Mendoza v. USCIS ( 2022 )

USDC SDNY DOCUMENT UNITED STATES DISTRICT COURT ELECTRONICALLY FILED SOUTHERN DISTRICT OF NEW YORK Jesus Mendoza, Plaintiff, 21-cv-9296 (AJN) (KHP) ~ ORDER USCIS, Defendant. ALISON J. NATHAN, Circuit Judge, sitting by designation: On December 20, 2021, the Court referred the Defendant’s motion to dismiss this action as frivolous and for lack of subject matter jurisdiction under 28 U.S.C. § 1915(e)(2) and Rules 12(b)(1) and 12(b)(6) to Magistrate Judge Katharine H. Parker. Dkt. No. 17. The Plaintiff did not file an opposition to the Defendant’s motion. On March 22, 2022, Judge Parker filed a Report & Recommendation recommending that the Court dismiss with prejudice the Plaintiff's amended complaint for lack of subject matter jurisdiction. Dkt. No. 26. When considering the findings and recommendations of a Magistrate Judge, the Court may “accept, reject, or modify [them], in whole or in part.” 28 U.S.C. § 636(b)(1). The Court must make a de novo determination of any portions of a magistrate’s report or findings to which a party raises an objection, and reviews only for “clear error on the face of the record” when there are no timely objections to the Report & Recommendation. Banks v. Comm’r of Soc. Sec., No. 19-cv-929 (AJN) (SDA), 2020 WL 2765686, at *1 (S.D.N.Y. May 27, 2020); see also Brennan y. Colvin, No. 13-cv-6338 (AJN), 2015 WL 1402204, at *1 (S.D.N.Y. Mar. 25, 2015); Hicks v. Ercole, No. 09-cv-2531 (AJN) (MHD), 2015 WL 1266800, at *1 (S.D.N.Y. Mar. 18, 2015); Gomez v. Brown, 655 F. Supp. 2d 332, 341 (S.D.N.Y. 2009). Clear error is found only when, upon review of the entire record, the Court is left with “the definite and firm conviction that a mistake has been committed.” Laster v. Mancini, No. 07-cv-8265 (DAB) (MHD), 2013 WL 5405468, at *2 (S.D.N.Y. Sept. 25, 2013) (quoting United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006)). Objections to Judge Parker’s Report & Recommendation were due April 5, 2022. Dkt. No. 26 at 8. As of the date of this Order, no objections to the Report & Recommendation have been filed. Thus, the Court reviews the Report & Recommendation for clear error, and it finds none. The Court therefore adopts the Report & Recommendation in its entirety and GRANTS the Defendant’s motion. The Court dismisses with prejudice the Plaintiff's amended complaint. This resolves docket number 14. The Clerk of Court is respectfully directed to enter judgment in accordance with the Report & Recommendation and close this case. The Clerk of Court is further respectfully asked to mail a copy of this Order to the Plaintiff, Jesus Mendoza, and note the mailing on the public docket. SO ORDERED. Dated: April 8, 2022 A \) 1 se New York, New York ALISON J. NATHAN United States Circuit Judge Sitting by designation