United States District Court, N.D. New York
June 25, 2015
MICHAEL NICHOLAS, Plaintiff,
CITY OF SCHENECTADY; CITY OF SCHENECTADY POLICE DEP'T; POLICE SERGEANT LUCIANO SAVOIA; POLICE OFFICER MICHAEL HUDSON; POLICE OFFICER CRAIG CROMLEY; POLICE OFFICER MICHAEL CROUNSE; POLICE OFFICE CHRIS SEMIONE; and UNITED STATES MARSHAL AL DWYER, Defendants.
MICHAEL NICHOLAS Plaintiff, Pro Se, Poughkeepsie, New York.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
Currently before the Court, in this pro se civil rights action filed by Michael Nicholas ("Plaintiff") against the eight above-captioned entities and individuals ("Defendants") arising from a stop, search and arrest of Plaintiff in Schenectady, New York on April 9, 2012, is United States Magistrate Christian F. Hummel's Report-Recommendation recommending that certain of the claims in Plaintiff's Complaint be dismissed with prejudice (and without leave to amend), certain of the claims be dismissed without prejudice (and with leave to amend), and certain of the claims survive the Court's initial review of his Complaint. (Dkt. No. 4.) Plaintiff has not filed an objection to the Report-Recommendation and the deadline in which to do so has expired. ( See generally Docket Sheet.)
When no objection is filed to a report-recommendation, the Court subjects that reportrecommendation to only a clear error review. Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition. 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." Id. : see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, 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 and citations omitted).
Here, after carefully considering the matter, the Court can find no clear error with Magistrate Judge Hummel's Report-Recommendation. (Dkt. No. 4.) Magistrate Judge Hummel employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. ( Id. ) As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons stated therein.
The Court would add only one point. Plaintiff is advised that any Amended Complaint he chooses to file must comply with Local Rule 7.1(a)(4) of the Local Rules of Practice for the Northern District of New York, a courtesy copy of which was previously mailed to Plaintiff (along with the District's Pro Se Handbook) on April 3, 2015. (Dkt. No. 3.) Plaintiff is further advised that, should he chose to file an Amended Complaint, that Amended Complaint must reassert any claims not dismissed from his original Complaint (if he wishes to continue to pursue those claims), because an Amended Complaint must be complete pleading, which supersedes the original Complaint and may not incorporate any portion of the original Complaint by reference.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Hummel's Report-Recommendation (Dkt. No. 4) is ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that the following claims are DISMISSED with prejudice and without leave to amend:
(1) Plaintiff's claims against Defendants Savoia, Hudson, Crounse, Semione, and Comley in their official capacities; and
(2) Plaintiff's Eighth Amendment claims; and it is further
ORDERED that the following claims SHALL BE DISMISSED with prejudice and without further order of this Court UNLESS, within THIRTY (30) DAYS of the date of this Decision and Order, Plaintiff submits an Amended Complaint that corrects the pleading defects contained in those claims (in accordance with Magistrate Judge Hummel's Report-Recommendation):
(1) Plaintiff's Fourteenth Amendment claims; and
(2) Plaintiff's malicious prosecution claim; and it is further
ORDERED that the following claims SURVIVE the Court's initial review of Plaintiff's Complaint:
(1) Plaintiff's Fourth Amendment claims against Defendants Savoia, Hudson, Crounse, Semione, Comley, and Dwyer in the individual capacities;
(2) Plaintiff's Fifth Amendment claims against Defendants Savoia, Hudson, Crounse, Semione, Comley, and Dwyer in their individual capacities; and
(3) Plaintiff's remaining claims against Defendants City of Schenectady and the Schenectady Police Department; and it is further
ORDERED that any Amended Complaint Plaintiff submits shall be a complete pleading, which will supersede the original Complaint, and may not incorporate any portion of the original Complaint by reference, in accordance with Local Rule 7.1(a)(4) of the Local Rules of Practice for this District; and it is further
ORDERED that the Clerk of the Court shall issue Summonses for Defendants and forward them, along with copies of the original Complaint and General Order 25, to the United States Marshal for service upon Defendants; and it is further
ORDERED that Defendants or their counsel shall provide a formal response to the Complaint, in accordance with the Federal Rules of Civil Procedure, as it relates to the claims against them; and it is further
ORDERED that the Clerk serve a copy of this Decision and Order upon Plaintiff by regular mail.