UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK __________________________________________________ DAVID C. LETTIERI, Plaintiff, 3:24-CV-0102 v. (GTS/ML) DAVID GASKA, in their Individual and Official Capacity; KAREN MATSON, in their Individual and Official Capacity; BROOME COUNTY HUMANE SOCIETY, in their Official Capacity, and DEPARTMENT OF JUSTICE, in their Official Capacity, Defendants. __________________________________________________ APPEARANCES: DAVID C. LETTIERI Plaintiff, Pro Se Niagara County Jail 5526 Niagara Street Exd Lockport, New York 14094

GLENN T. SUDDABY, United States District Judge DECISION and ORDER Currently before the Court, in this pro se civil rights action filed by David C. Lettieri (“Plaintiff”) against David Gaska, Karen Matson, the Broome County Humane Society, and the Department of Justice, (“Defendants”), are (1) United States Magistrate Judge Miroslav Lovric’s Report-Recommendation recommending that (a) Plaintiff’s action be dismissed without prejudice unless, within thirty days of the date of an order to do so, Plaintiff pays the Court’s filing and administrative fee of $405.00, and (b) Plaintiff’s letter-motion for the return of his dog be denied without prejudice, (2) Plaintiff’s Objections to the Report-Recommendation, and (3) Plaintiff’s Amended Complaint. (Dkt. Nos. 4, 6, 8, 9.) After carefully reviewing the relevant papers herein, including Magistrate Judge Lovric’s thorough Report-Recommendation, the Court can find no error in the Report-Recommendation, clear or otherwise: Magistrate Judge Lovric employed the proper standards, accurately recited

the facts, and reasonably applied the law to those facts. (See generally Dkt. No. 6.) As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons set forth therein. To those reasons, the Court adds only two brief points. First, even when construed liberally, Plaintiff’s Objections fail to contain a specific challenge to a finding or conclusion contained in the Report-Recommendation. (See generally Dkt. No. 8.) As a result, the “challenged” portions of the Report-Recommendation are entitled to only a clear-error review,1 which they easily survive for the reasons stated in the Report-

Recommendation. In the alternative, the Court finds those portions of the Report-Recommendation survive a de novo review. Second, the Court finds the Report-Recommendation survives a de novo review even if the Court were to apply the Report-Recommendation’s findings of fact and conclusions of law to Plaintiff’s Amended Complaint rather than to his original Complaint. The Court notes that, out

1 When no specific challenge is made to a magistrate judge's report-recommendation, the Court subjects that 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 also Brown v. Peters, 95-CV-1641,

, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion,

(2d Cir. 1999). 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.” Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition; see also Batista v. Walker, 94-CV-2826,

, 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 of special solicitude to Plaintiff as a pro se civil rights litigant, the Court shall consider his Amended Complaint as having been properly filed, even though some district courts in the Second Circuit disagree regarding that conclusion.’ ACCORDINGLY, it is ORDERED that Magistrate Judge Lovric’s Report-Recommendation (Dkt. No. 6) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Plaintiff's Amended Complaint (Dkt. No. 9) shall be DISMISSED without prejudice and without further of the Court, unless, within THIRTY (30) DAYS of the date of this Decision and Order, Plaintiff pays the Court’s filing and administrative fee of $405.00; and it is further ORDERED that Plaintiffs letter-motion for the return of his dog (Dkt. No. 4) is DENIED without prejudice. Dated: June 25, 2024 Syracuse, New York Glenn T. Suddaby U.S. District Judge

2 Rule 15(a)(1)(A) of the Federal Rules of Civil Procedure provides that “[a] party may amend its pleading once as a matter of course within ... 21 days after serving it ....” Fed. R. Civ. P. 15(a)(1)(A) (emphasis added). Here, Plaintiff never served his Complaint. (See generally Docket Sheet.) Under the circumstances, some courts disagree regarding whether he was within the 21-day window in which he could properly file an Amended Complaint as a matter of course. Compare Henderson v. Wells Fargo Bank, NA, 13-CV-0378,

, at *2 (D. Conn. Feb. 13, 2015) (“Fed. R. Civ. P. 15(a) provides that a “party may amend its pleading once as a matter of course within ... 21 days after serving it.’ Because Plaintiff has not yet served Defendant with the complaint, her motion is granted although unnecessary because leave of the Court is not required.”) with Morris v. New York State Gaming Comm'n, 18-CV-0384,

, at *4 (W.D.N.Y. March 14, 2019) (“Because Plaintiff never served the original Complaint, the 21-day time limit to file an amended complaint under Rule 15(a)(1)(A) never commenced.”).