Cantey v. County of Albany et al

Filing 7

DECISION & ORDER accepting and adopting in its entirety Magistrate Judge Hummel's 4 Report and Recommendation; that the following claims in pltfs 1 complaint are DISMISSED with prejudice: (1) Pltfs official-capacity claims against defts Mart inez and Burnham; (2) Pltfs slander and libel claims under New York State law against defts Martinez and Burnham in their individual capacities; and (3) Pltfs threat-of-force claim under the Fourth and/or Fourteenth Amendments against defts Martinez and Burnham in their individual capacities; that the following claims in pltfs 1 complaint are DISMISSED without prejudice to refiling in this action in accordance with Fed. R. Civ. P. 15 and this Decision and Oder: (1) Pltfs claims against the Cou nty of Albany, City of Albany and City of Albany Police Department; (2) Pltfs claim under the Fifth Amendment against all defts; (3) Pltfs malicious prosecution and abuse of process claims under the Fourteenth Amendment and/or New York State law agai nst defts Martinez and Burnham in their individual capacities; (4) Pltfs claim under the Fourteenth Amendment against all defts; and (5) Pltfs fraud claim under New York State law against defts Martinez and Burnham in their individual capacities: and that the following claims in pltfs 1 Complaint may proceed: his false arrest and false imprisonment claims under the Fourth Amendment against defts Martinez and Burnham in their individual capacities. The Clerks Office is directed to issue summons es for defts Martinez and Burnham and forward to the U.S. Marshal for service. The Clerks Office is directed to terminate defts County of Albany, City of Albany, and Albany Police Department. Signed by Chief Judge Glenn T. Suddaby on 2/22/2016. (see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
ANDRE CANTEY,
Plaintiff,
1:16-CV-0014
(GTS/CFH)

v.
COUNTY OF ALBANY; CITY OF ALBANY;
CITY OF ALBANY POLICE DEPARTMENT;
JOSE MARTINEZ, Police Officer, City of Albany;
and BEN BURNHAM, Police Officer, City of Albany,
Defendants.
_____________________________________________
APPEARANCES:
ANDRE CANTEY, 14-A-4643
Plaintiff, Pro Se
Coxsackie Correctional Facility
P.O. Box 999
Coxsackie, New York 12051
GLENN T. SUDDABY, Chief United States District Judge

DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by Andre Cantey
(“Plaintiff”) against the five above-captioned entities and individuals (“Defendants”) arising
from his arrest and imprisonment in June of 2014 in the City of Albany, is United States
Magistrate Judge Christian F. Hummel’s Report-Recommendation recommending that certain of
Plaintiff’s claims in his Complaint be dismissed with prejudice, that certain of his claims be
dismissed without prejudice, and that his false arrest and false imprisonment claims against
Defendants Martinez and Burnham in their individual capacities be permitted to proceed. (Dkt.
No. 4.) Plaintiff has not filed an objection to the Report-Recommendation, and the deadline by
which to do so has expired. (See generally Docket Sheet.) For the reasons set forth below, the
Report-Recommendation is adopted in its entirety.

When, as here, 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 and citations omitted).
Based upon a careful review of the record in this matter, the Court can find no clear error
in the Report-Recommendation: Magistrate Judge Hummel employed the proper standards,
accurately recited the facts, and reasonably applied the law to those facts. As a result, the Court
accepts and adopts the Report-Recommendation for the reasons stated therein. (Dkt. No. 4.) To
those reasons, the Court adds only one point.
Magistrate Judge Hummel’s Report-Recommendation does not expressly contain a
recommendation regarding Plaintiff’s claims against the County of Albany. (Dkt. No. 4.) This
is certainly understandable, given the rambling construction of the Complaint and the absence of
a reference to the County in its “Parties” section. (Dkt. No. 1.) However, when construed with
special liberality, the Complaint certainly attempts to assert claims against the County, referring
to the County in the caption, as well as in Paragraphs “5,” “7” and “8.1.” (Id.) The problem
with the Complaint is that it fails to allege facts plausibly suggesting that the County had an
official policy, custom or practice, and that Defendants Martinez and Burnham (who were
officers of the City Police Department) were acting in response to that policy, custom or practice.
(Id.) For these reasons, Plaintiff’s claims against the County of Albany are dismissed without
prejudice.
2

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 in Plaintiff’s Complaint (Dkt. No. 1) are
DISMISSED with prejudice:
(1)

Plaintiff’s official-capacity claims against Defendants Martinez and Burnham;

(2)

Plaintiff’s slander and libel claims under New York State law against Defendants
Martinez and Burnham in their individual capacities;

(3)

Plaintiff’s threat-of-force claim under the Fourth and/or Fourteenth Amendments
against Defendants Martinez and Burnham in their individual capacities; and it is
further

ORDERED that the following claims in Plaintiff’s Complaint (Dkt. No. 1) are
DISMISSED without prejudice to refiling in this action in accordance with Fed. R. Civ. P. 15
and this Decision and Order:
(1)

Plaintiff’s claims against the County of Albany, City of Albany and City of
Albany Police Department;

(2)

Plaintiff’s claim under the Fifth Amendment against all Defendants;

(3)

Plaintiff’s malicious prosecution and abuse of process claims under the
Fourteenth Amendment and/or New York State law against Defendants Martinez
and Burnham in their individual capacities;

(4)

Plaintiff’s claim under the Fourteenth Amendment against all Defendants;

(5)

Plaintiff’s fraud claim under New York State law against Defendants Martinez
and Burnham in their individual capacities;
3

ORDERED that the following claims in Plaintiff’s Complaint (Dkt. No. 1) may proceed:
his false arrest and false imprisonment claims under the Fourth Amendment against Defendants
Martinez and Burnham in their individual capacities. The Clerk’s office is directed to issue
summonses for Defendants Martinez and Burnham and forward to the U.S. Marshal for service.
The Clerk’s office is directed to terminate Defendants County of Albany, City of Albany and
Albany Police Department.
Dated: February 22, 2016
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
Chief United States District Judge

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