Thomas' complaint is totally silent as to defendant Westchester County Department of Corrections. The complaint therefore fails to state a claim as to that defendant. Plaintiff Thomas should be permitted to amend his complaint if he can assert facts to state a claim against the Westchester County Department of Corrections. See, e.g., Wright v. Nunez, 950 F. Supp. at 612; McCray v. Kralik, 1996 U.S. Dist. LEXIS 9474, 1996 WL 378273 at *4 (citing Soto v. Walker, 44 F.3d 169, 173 & n.5 (2d Cir. 1995) (citing Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991))).
For the reasons set forth above, I recommend that the Court sua sponte dismiss the complaint against defendant Westchester County Department of Corrections for failure to state a claim and as frivolous, without prejudice to Thomas filing an amended complaint within 30 days.
Pursuant to the PLRA, defendant Correction Officer Slensby is directed to respond to the complaint (by answer or motion) after he is served. Plaintiff Thomas is to serve this Report and Recommendation on defendant Slensby along with the summons and complaint (or on their counsel if defendants have already been served). Plaintiff Thomas is reminded that, pursuant to Federal Rule of Civil Procedure 4(m), he must arrange with the Marshals to have the summons and complaint served within 120 days of its initial filing with the Court.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 750, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86, 130 L. Ed. 2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825, 121 L. Ed. 2d 696 (1992); Small v. Secretary of Health & Human Services, 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).
DATED: New York, New York
March 13, 1997
Andrew J. Peck
United States Magistrate Judge
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