United States District Court, N.D. New York
WILMER Plaintiff, Pro Se.
DECISION AND ORDER
T. Suddaby, Chief United States District Judge.
before the Court, in this pro se civil rights action
filed by Tiheem Wilmer (“Plaintiff”) against the
Albany County Police and Scott Gavendy
(“Defendants”) asserting claims of excessive
force and unreasonable search, is United States Magistrate
Judge Thérèse Wiley Dancks'
Report-Recommendation recommending that certain claims
Plaintiff's Complaint be sua sponte dismissed
with prejudice, while other claims in the Complaint be
sua sponte dismissed without prejudice and with
leave to replead, pursuant to 28 U.S.C. § 1915(e). (Dkt.
No. 6.) Plaintiff has not submitted an Objection to the
Report-Recommendation, and the deadline by which to do so has
expired. (See generally Docket Sheet.)
carefully reviewing the relevant papers herein, including
Magistrate Judge Dancks' thorough Report-Recommendation,
the Court can find no clear-error in the
Report-Recommendation. Magistrate Judge Dancks 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. To those reasons, the
Court adds only one minor point.
Magistrate Judge Dancks recommended that the various claims
in the Complaint be dismissed without prejudice and that
Plaintiff be permitted to amend those claims, the Court
respectfully construes this recommendation as one that those
claims be dismissed with prejudice unless Plaintiff
successfully amends those claims. This is because the Court
has difficulty understanding how, if it were to dismiss the
Complaint now, it could properly be said to retain
jurisdiction over the action so as to enable Plaintiff to
file an Amended Complaint.
that Magistrate Judge Dancks Report-Recommendation (Dkt. No.
6) is ACCEPTED and
ADOPTED in its entirety; and it is
that the claims in Plaintiffs Complaint (Dkt. No. 1) against
the Albany County Police are DISMISSED with
prejudice EXCEPT to the extent that Plaintiff wishes
to assert those claims against the appropriate municipal
entity as the real party in interest, which Plaintiff shall
have an opportunity to do in the Amended Complaint that is
discussed in the following paragraph; and it is further
that the remaining claims in Plaintiffs Complaint, which are
asserted against Scott Gavendy, shall be
DISMISSED with prejudice and without
further Order of this Court UNLESS, within
THIRTY (30) DAYS from the date of this
Decision and Order, Plaintiff files an AMENDED
COMPLAINT that corrects the pleading defects
identified in those claims; and it is further
that, should Plaintiff file such a timely Amended Complaint,
it will be referred to Magistrate Judge Dancks for her
 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
 After all, federal district courts
possess subject-matter jurisdiction over actions, which is
generally lost after the dismissal of the operative
complaints in those actions, except with regard to ancillary
jurisdiction over certain collateral matters (such as the
award of attorney's fees and costs, the imposition of
Rule 11 sanctions, and the enforcement of compliance with the
terms of a settlement agreement that has been made part of
the order of dismissal). The filing of a new operative
pleading does not appear to be a collateral matter: rather,
it appears to be what does or does not confer federal
jurisdiction on the district court. Furthermore, the Court
respectfully believes that acting as though it retains
non-ancillary jurisdiction over a complaint-free action is
not only unnecessary but confusing (e.g., often misleading a
litigant or even a district court into believing that an
action was dismissed pursuant to Fed.R.Civ.P. 41[b] and not
Fed.R.Civ.P. 12[b] for purposes of 28 U.S.C. §
1915[g] after a plaintiff failed to comply with a court order
to file an amended complaint correcting the pleading defects
in an original complaint). Logan v. Town of Windsor,
18-CV-0593, 2018 WL 3853996, at *1 & n.3 (N.D.N.Y. Aug.
14, 2018) (Suddaby, C.J.); compare Bermudez v.
Rossi, 07-CV-0367, 2008 WL 619170, at *3 (N.D.N.Y. March
3, 2008) (Kahn, J., adopting ...