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Smith v. Pines

United States District Court, N.D. New York

June 16, 2017

TIMOTHY SMITH, Plaintiff,
v.
SPERO PINES, Broome Cty. Family Court Judge; RONALD LANOUETTE, Broome Cty. Family Court Lawyer; JOHN TKACH, DSS Manager; and TICIA EAVES, Berkshire Planner, Defendants.

          TIMOTHY SMITH Plaintiff, Pro Se.

          DECISION AND ORDER

          GLENN T. SUDDABY, Chief United States District Judge.

         Currently before the Court, in this pro se civil rights action filed by Timothy Smith (“Plaintiff”) against the four above-captioned individuals (“Defendants”) arising out of the transfer of his children to the custody of the Broome County Department of Social Services (“DSS”), is United States Magistrate Judge David E. Peebles' Report-Recommendation recommending that Plaintiff's claims against Defendants Tkach and Eaves be dismissed with leave to replead through an Amended Complaint within thirty (30) days of the date of any Court Order adopting the Report-Recommendation, but that Plaintiff's claims against Defendants Pines and Lanouette be dismissed without leave to replead. (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.) Instead, Plaintiff has filed an Amended Complaint as of right pursuant to Fed.R.Civ.P. 15(a)(1)(A).[1] (Dkt. No. 5.)

         Ordinarily, an amended complaint supersedes an original complaint in all respects.[2] As a result, the filing of an amended complaint may effectively moot a report-recommendation to the extent the report-recommendation recommends the dismissal of a claim that is asserted in a complaint but not in the amended complaint.[3] However, here, Plaintiff's Amended Complaint (although abandoning his claims against Defendants Pines and Lanouette) attempts to correct the pleading defects (identified by Magistrate Judge Peebles) in his claims against Defendants Tkach and Eaves, and attempts to assert similar claims against the Broome County Department of Social Services itself, nine additional employees thereof, and Berskshire Farm Center. (Dkt. No. 5.) Moreover, the Court continues to be shouldered with the statutory duty to review the pleading sufficiency of this in forma pauperis plaintiff's amended claims (which do not appear dramatically different from those asserted in his original Complaint). 28 U.S.C. § 1915(e)(2)(B). As a result, the Court finds that much, if not the entirety, of the Report-Recommendation has not been mooted;[4] and the Court will therefore review the Report-Recommendation.

         When no objection is made to a report-recommendation, the Court subjects that report-recommendation 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 omitted).

         After carefully reviewing the relevant papers herein, including Magistrate Judge Peebles' thorough Report-Recommendation, the Court can find no clear error in the Report-Recommendation. Magistrate Judge Peebles employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons set forth therein. Plaintiff's claims against Defendants Tkach and Eaves in his original Complaint are deemed to be formally defective and in need of correction through an Amended Complaint or they will be dismissed with prejudice; and Plaintiff's claims against Defendants Pines and Lanouette in his original Complaint are deemed to be substantively defective and not capable of reassertion.

         Finally, the Court returns this matter to Magistrate Judge Peebles for his review of the pleading sufficiency of the Amended Complaint (and his management of pretrial matters).

         ACCORDINGLY, it is

         ORDERED that Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 4) is ACCEPTED and ADOPTED in its entirety; and it is further

         ORDERED that Plaintiff's claims against Defendants Tkach and Eaves in his original Complaint are deemed to be formally defective and in need of correction through an Amended Complaint or they will be DISMISSED with prejudice; and it is further

         ORDERED that Plaintiff's claims against Defendants Pines and Lanouette in his original Complaint are deemed to be substantively defective and not capable of reassertion; and it is further

         ORDERED that the Clerk of the Court shall amend the docket so as to TERMINATE Spero Pines and Ronald Lanouette as Defendants in this action, but to ADD as Defendants the additional entities and individuals identified in the Amended Complaint (i.e., the Broome County Department of Social Services, Traci Ziegenhagen, Katrina Tokos, Julia Hepworth, Jessica Layman, Susan Patterson, Marissa Carter, Kathleen Santoni, John Choynowski, Jon Peterson, and Berskshire Farm Center); and it is further

         ORDERED that Plaintiffs Amended Complaint (Dkt. No. 5) is returned to Magistrate Judge Peebles for his review ...


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