Moore v. Samuel S. Stratten Veterans Administration Hospital

Filing 26

ORDERED, that Plaintiffs claim for speedy trial violations be DISMISSED with prejudice insofar as they are alleged against the defendant unnamed guard/officer; and it is further ORDERED, that, insofar as Plaintiffs Amended Complaint (Dkt. No. 16) can be read as attempting to reallege (1) Bivens claims against the unnamed guard/officer in his official capacity, and (2) claims for injunctive relief under Bivens, such claims be considered STRICKEN from the Amended Complaint as these claims were DIS MISSED with prejudice in the Courts June, 2016 Order; and it is further ORDERED, that Plaintiffs Amended Complaint be read as attempting to set forth a claim for excessive force in violation of the Fourth Amendment against the unnamed guard/officer, but, because such claim is conclusory, that claim be DISMISSED without prejudice; and it is further ORDERED, that any claims that Plaintiff may seek to bring against the second officer are DISMISSED without prejudice, due to Plaintiffs failure to cur e the defects in his original Complaint (Dkt. No. 1); and it is further, ORDERED, that rather than supersede and replace the original Complaint, the Amended Complaint be docketed as a supplement to Plaintiffs original Complaint, that the original Com plaint and Amended Complaint be read together as the operative complaint in this action, and that claims dismissed or stricken by the undersigned be read as if they are not contained within these documents; and it is further ORDERED, that the Clerk i s directed to amend the docket to reflect the correct spelling of Defendants name, which is the Samuel S. Stratton Veterans Administration Hospital. Signed by Senior Judge Lawrence E. Kahn on October 27, 2016. ***A copy of this Order was served upon pro se party via US Mail. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DAVID ALLEN MOORE,
Plaintiff,
-against-

1:16-CV-475 (LEK/CFH)

SAMUEL S. STRATTON VETERANS
ADMINISTRATION HOSPITAL,
Defendant.

ORDER
This matter comes before the Court following a Report-Recommendation filed on August
10, 2016, by the Honorable Christian F. Hummel, U.S. Magistrate Judge, pursuant to 28 U.S.C.
§ 636(b) and Local Rule 72.3.1 Dkt. No. 17. (“Report-Recommendation”).
Within fourteen days after a party has been served with a copy of a magistrate judge’s
report-recommendation, the party “may serve and file specific, written objections to the proposed
findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). If no objections are made, or
if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to
the magistrate judge, a district court need review that aspect of a report-recommendation only for
clear error. Barnes v. Prack, No. 11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18,
2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07, 306 n.2 (N.D.N.Y. 2008); see also
Machicote v. Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011)
(“[E]ven a pro se party’s objections to a Report and Recommendation must be specific and
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Defendant is incorrectly listed on the docket as the “Samuel S. Stratten Veterans
Administration Hospital.” The Clerk of the Court is directed to amend the docket to reflect the
correct spelling of Defendant’s name, which is the “Samuel S. Stratton Veterans Administration
Hospital.”

clearly aimed at particular findings in the magistrate’s proposal, such that no party be allowed a
second bite at the apple by simply relitigating a prior argument.”). “A [district] judge . . . may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b).
No objections were filed in the allotted time period. See Docket. Accordingly, the Court
has reviewed the Report-Recommendation for clear error and has found none.
Accordingly, it is hereby:
ORDERED, that Plaintiff’s claim for speedy trial violations be DISMISSED with
prejudice insofar as they are alleged against the defendant unnamed guard/officer; and it is
further
ORDERED, that, insofar as Plaintiff’s Amended Complaint (Dkt. No. 16) can be read as
attempting to reallege (1) Bivens claims against the unnamed guard/officer in his official
capacity, and (2) claims for injunctive relief under Bivens, such claims be considered
STRICKEN from the Amended Complaint as these claims were DISMISSED with prejudice
in the Court’s June, 2016 Order; and it is further
ORDERED, that Plaintiff’s Amended Complaint be read as attempting to set forth a
claim for excessive force in violation of the Fourth Amendment against the unnamed
guard/officer, but, because such claim is conclusory, that claim be DISMISSED without
prejudice; and it is further
ORDERED, that any claims that Plaintiff may seek to bring against the second officer
are DISMISSED without prejudice, due to Plaintiff’s failure to cure the defects in his original
Complaint (Dkt. No. 1); and it is further,
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ORDERED, that rather than supersede and replace the original Complaint, the Amended
Complaint be docketed as a supplement to Plaintiff’s original Complaint, that the original
Complaint and Amended Complaint be read together as the operative complaint in this action,
and that claims dismissed or stricken by the undersigned be read as if they are not contained
within these documents; and it is further
ORDERED, that the Clerk is directed to amend the docket to reflect the correct spelling
of Defendant’s name, which is the “Samuel S. Stratton Veterans Administration Hospital”; and it
is further
ORDERED, that Clerk of the Court serve a copy of this Order on Plaintiff.
IT IS SO ORDERED.

DATED:

October 27, 2016
Albany, New York

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