Nicholas v. City of Schenectady et al

Filing 5

DECISION AND ORDER: that Magistrate Judge Hummel's Report-Recommendation 4 is Accepted and Adopted in its entirety; that the following claims are Dismissed with prejudice and without leave to amend: Plaintiff's claims against Defendants S avoia, Hudson, Crounse, Semione and Comley in their official capacities and Plaintiff's Eighth Amendment claims and that the following claims shall be Dismissed with prejudice and without further order of this Court unless, within thirty (30) da ys 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): Plaintiff's Fourteenth Amen dment claims; and Plaintiff's malicious prosecution claim and that the following claims survive the Court's initial review of Plaintiff's Complaint: Plaintiff's Fourth Amendment claims against Defendants Savoia, Hudson, Crounse, S emione, Comley, and Dwyer in the individual capacities; Plaintiff's Fifth Amendment claims against Defendants Savoia, Hudson, Crounse, Semione, Comley and Dwyer in their individual capacities and Plaintiff's remaining claims against Defenda nts City of Schenectady and the Schenectady Police Department and 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 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 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.Signed by Judge Glenn T. Suddaby on 06/25/2015. (hmr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
MICHAEL NICHOLAS,
Plaintiff,
v.

1:15-CV-0402
(GTS/CFH)

Could

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.
_______________________________________________
APPEARANCES:
MICHAEL NICHOLAS
Plaintiff, Pro Se
202 Winnikee Avenue
Poughkeepsie, New York 12601
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
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.
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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 ReportRecommendation):
(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
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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.
Dated: June 25, 2015
Syracuse, New York

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