Perez v. General Motors LLC et al

Filing 6

ORDER adopting the # 4 Report and Recommendations, it is Ordered that the following claims are DISMISSED with prejudice and without leave to amend, 1) all claims against defendant Wallace in his official capacity, 2) all claims against defendant A lbany Housing Authority, 3) all claims against Defendant City of Albany EXCEPT (1) Plaintiffs claims of unreasonable search and seizure, false arrest and excessive force under the Fourth Amendmentagainst Defendant City of Albany. It is Ordered that P laintiff's claims of unreasonable search and seizure, false arrest and excessive force under the Fourth Amendment against Defendant City of Albany, and 2) her claims of false arrest and assault and battery under New York State law against Defend ant City of Albany, shall be DISMISSED with prejudice and without further Order of this Court UNLESS, within THIRTY (30) DAYS of the date of this Decision & Order, Plaintiff submits an Amended Complaint correcting the pleading defects in those claims as identified in Magistrate Judge Hummels Report-Recommendation. It is Ordered that any Amended Complaint that Plaintiff chooses to file shall be a complete pleading, which with supersede her original Complaint in all respects, and may not incorpora te any portion of her original Complaint by reference, in accordance with Local Rule 7.1(a)(4) of the Districts Local Rules of Practice. It is Ordered that Plaintiffs remaining claimsi.e., her claims against Defendant Jack Wallace in his individual c apacity and her claims against General Motors LLC, General Motors Holding, LLC, Delphi Automotive, PLC, DPH-DAS, LLC f/k/a Delphi Automotive Systems, LLC, and Goldstein Chrysler Jeep, Inc. SURVIVE the Courts initial review of her Complaint. The Clerk shall issue summonses, along with copies of theComplaint and General Order 25, to the United States Marshal for service upon the remaining Defendants. {Copy sent to pro se plaintiff by regular mail} Signed by Judge Glenn T. Suddaby on 4/21/2015. (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
GLADYS PEREZ,
Plaintiff,
1:15-CV-0240
(GTS/CFH)

v.
GEN. MOTORS, LLC; GEN. MOTORS HOLDING, LLC;
DELPHI AUTO., PLC; DPH-DAS, LLC, f/k/a DELPHI
AUTO. SYS., LLC; GOLDSTEIN CHRYSLER JEEP,
INC.; PATROLMAN JACK WALLACE; CITY OF
ALBANY; and ALBANY HOUSING AUTH.,
Defendants.
_______________________________________________
APPEARANCES:
GLADYS PEREZ
Plaintiff, Pro Se
63 Second Street, Unit 1
Waterford, New York 12188
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER

Currently before the Court, in this civil rights action filed pro se by Gladys Perez
(“Plaintiff”) against the above-captioned individual and entities (“Defendants”) arising from
Plaintiff’s arrest following an auto accident in March of 2014 in Albany, New York, is United
States Magistrate Christian F. Hummel’s Report-Recommendation recommending that certain of
the claims in Plaintiff’s Complaint be dismissed with prejudice, that certain of her claims be
conditionally dismissed (i.e., dismissed with prejudice unless she corrects the pleading defects in
them within thirty dates of the date of this Decision and Order), and that the remainder of her
claims survive the Court’s initial review of her 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 made 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 omitted).
Here, based upon a careful review of this matter, the Court can find no clear error in
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.
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)

all claims against Defendant Jack Wallace in his official capacity;

(2)

all claims against Defendant Albany Housing Authority; and

2

(3)

all claims against Defendant City of Albany EXCEPT (1) Plaintiff’s claims of

unreasonable search and seizure, false arrest and excessive force under the Fourth Amendment
against Defendant City of Albany, and (2) her claims of false arrest and assault and battery under
New York State law against Defendant City of Albany; and it is further
ORDERED that Plaintiff’s claims of unreasonable search and seizure, false arrest and
excessive force under the Fourth Amendment against Defendant City of Albany, and her claims
of false arrest and assault and battery under New York State law against Defendant City of
Albany, shall be DISMISSED with prejudice and without further Order of this Court
UNLESS, within THIRTY (30) DAYS of the date of this Decision & Order, Plaintiff submits
an Amended Complaint correcting the pleading defects in those claims as identified in
Magistrate Judge Hummel’s Report-Recommendation; and it is further
ORDERED that any Amended Complaint that Plaintiff chooses to file shall be a
complete pleading, which with supersede her original Complaint in all respects, and may not
incorporate any portion of her original Complaint by reference, in accordance with Local Rule
7.1(a)(4) of the District’s Local Rules of Practice;1 and it is further
ORDERED that Plaintiff’s remaining claims–i.e., her claims against Defendant Jack
Wallace in his individual capacity and her claims against General Motors LLC, General Motors
Holding, LLC, Delphi Automotive, PLC, DPH-DAS, LLC f/k/a Delphi Automotive Systems,
LLC, and Goldstein Chrysler Jeep, Inc.–SURVIVE the Court’s initial review of her Complaint;
and it is further

1

The Court notes that, on March 3, 2015, Plaintiff was provided with a courtesy
copy of both the District’s Local Rules of Practice and the District’s Pro Se Handbook. (Dkt.
No. 3.)
3

ORDERED that the Clerk of Court shall issue Summonses, along with copies of the
Complaint and General Order 25, to the United States Marshal for service upon the Defendants
listed in the preceding paragraph (“the remaining Defendants”); and it is further
ORDERED that those remaining 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 of Court shall serve a copy of this Decision and Order upon
Plaintiff.
Dated: April 21, 2015
Syracuse, New York

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