Corye et al v. Doe 1 et al
Filing
10
DECISION AND ORDER: adopting the # 9 Order and Report-Recommendation of Magistrate Judge Therese Wiley Dancks. It is ORDERED that the following claims in Plaintiffs' # 5 Amended Complaint are DISMISSED with prejudice: (1) all of Plaintiffs 039; claims against Defendant Soares; (2) Plaintiffs' negligence claim against Defendant Anderson. It is further ORDERED that the following claims in Plaintiffs' Amended complaint shall be DISMISSED with prejudice without further Order of t he Court UNLESS, within THIRTY (30) DAYS of the date of this Decision and Order, Plaintiffs file a Second Amended Complaint correcting the pleading defects identified by Magistrate Judge Dancks: (1) Plaintiffs' false arrest claim against Defenda nt Anderson; (2) Plaintiffs' false imprisonment claim against Defendant Anderson; and (3) Plaintiffs' claim of violation of their right to equal protection against Defendant Anderson. It is further ORDERED that all of the claims in Plaintif fs' # 5 Amended Complaint against Defendant Michel (i.e. Plaintiffs' claims of false arrest, false imprisonment and excessive force) may proceed now. It is further ORDERED that the Clerk shall issue a summons for Defendant Michel using th e address found in Plaintiffs' Amended Complaint and forward it, along with a copy of the Amended Complaint. to the United States Marshal for service upon Defendant Michel. The Clerk shall forward a copy of the summons and complaint by mail to t he Office of the Albany Corporation Counsel at City Hall, Room 106, 24 Eagle Street, Albany, NY 12207, together with a copy of this Decision and Order. It is further ORDERED that a response to the complaint be filed by defendant Michel, or his counse l, as provided for in the Federal Rules of Civil Procedure. It is further ORDERED that all pleadings, motions and other documents relating to this action must bear the case number assigned to this ation and be filed with the Clerk of the United State s District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St., Syracuse, New York 13261-7367. Any paper sent by a party to the Court or the Clerk must be accompanied by a certificate showing that a true and correct copy of the same was served on all opposing parties or their counsel. Any document received by the Clerk or the Court which does not include a proper certificate of service will be stricken from the docket. Plaintiffs must comply with any request by the Clerk's Office for any documents that are necessary to maintain this action. All parties must comply with Local Rule 7.1 of the Northern District of New York in filing motions. Plaintiff is also required to promptly notify the Clerk's O ffice and all parties or their counsel, in writing, of any change in their address; their failure to do so will result in the dismissal of his action. Signed by Chief Judge Glenn T. Suddaby on 11/18/2016. [Copy served upon pro se plaintiffs and the Office of Albany Corporation Counsel via regular mail.] (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
JULIAN CORYE; and CHRISTINA FERKEY,
Plaintiffs,
1:16-CV-0887
(GTS/TWD)
v.
POLICE OFFICER MICHEL, Supervisor on Duty;
SERGEANT ANDERSON; and ALBANY
DISTRICT ATTORNEY DAVID SOARES,
Defendants.
__________________________________________
APPEARANCES:
OF COUNSEL:
JULIAN CORYE
Plaintiff, Pro Se
17960 Ranchera Road
Shasta Lake, California 96019
CHRISTINA FERKEY
Plaintiff, Pro Se
17960 Ranchera Road
Shasta Lake, California 96019
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by Julian Corye and
Christina Ferkey (“Plaintiffs”) against the three above-captioned employees of New York State
(“Defendants”) arising from an alleged false arrest and imprisonment in September 2015 within
the City of Albany, New York, is United States Magistrate Judge Thérèse Wiley Dancks’
Report-Recommendation recommending that certain of Plaintiffs’ claims be dismissed with
prejudice, that certain of their claims be dismissed without prejudice to refiling within thirty
days, and that certain of their claims be permitted to proceed. (Dkt. No. 9.) Plaintiffs have not
filed any objections to the Report-Recommendation and the deadline in which to do so has
expired. (See generally Docket Sheet.) After carefully reviewing the relevant papers herein,
including Magistrate Judge Dancks’ thorough Report-Recommendation, the Court can find no
clear-error1 in the Report-Recommendation: Magistrate Judge Dancks employed the proper
standards, accurately recited the facts, and reasonably applied the law to those facts. (Dkt. No.
9.) 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 Dancks’ Report-Recommendation (Dkt. No. 9) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that the following claims in Plaintiffs’ Amended Complaint (Dkt. No. 5) are
DISMISSED with prejudice:
(1)
all of Plaintiffs’ claims against Defendant Soares;
(2)
Plaintiffs’ negligence claim against Defendant Anderson; and it is further
ORDERED that the following claims in Plaintiffs’ Amended Complaint (Dkt. No. 5)
shall be DISMISSED with prejudice without further Order of the Court UNLESS, within
THIRTY (30) DAYS of the date of this Decision and Order, Plaintiffs file a Second Amended
Complaint correcting the pleading defects identified by Magistrate Judge Dancks:
1
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 omitted).
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(1)
Plaintiffs’ false arrest claim against Defendant Anderson;
(2)
Plaintiffs’ false imprisonment claim against Defendant Anderson; and
(3)
Plaintiffs’ claim of violation of their right to equal protection against Defendant
Anderson;2 and it is further
ORDERED that all of the claims in Plaintiffs’ Amended Complaint (Dkt. No. 5) against
Defendant Michel (i.e., Plaintiffs’ claims of false arrest, false imprisonment and excessive force)
may proceed now; and it is further
ORDERED that the Clerk shall issue a summons for Defendant Michel using the address
found in Plaintiffs’ Amended Complaint and forward it, along with a copy of the Amended
Complaint, to the United States Marshal for service upon defendant Michel. The Clerk shall
forward a copy of the summons and complaint by mail to the Office of the Albany Corporation
Counsel at City Hall, Room 106, 24 Eagle Street, Albany, NY 12207, together with a copy of
this Decision and Order; and it is further
ORDERED that a response to the complaint be filed by defendant Michel, or his
counsel, as provided for in the Federal Rules of Civil Procedure; and it is further
ORDERED that all pleadings, motions and other documents relating to this action
must bear the case number assigned to this action and be filed with the Clerk of the United States
District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St.,
Syracuse, New York 13261-7367. Any paper sent by a party to the Court or the Clerk must
2
Plaintiffs are advised that their Second Amended Complaint must be a complete
pleading that supersedes their Amended Complaint (Dkt. No. 5) in all respects (and does not
incorporate by reference any portion of their Amended Complaint), that they may not reassert
any claims that have been dismissed with prejudice by the Court, and that they may not attempt
to effect service on any Defendant until such time as authorized by the Court.
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be accompanied by a certificate showing that a true and correct copy of same was served
on all opposing parties or their counsel. Any document received by the Clerk or the Court
which does not include a proper certificate of service will be stricken from the docket.
Plaintiff must comply with any requests by the Clerk’s Office for any documents that are
necessary to maintain this action. All parties must comply with Local Rule 7.1 of the Northern
District of New York in filing motions. Plaintiff is also required to promptly notify the
Clerk’s Office and all parties or their counsel, in writing, of any change in his address;
their failure to do so will result in the dismissal of his action.
Dated: November 18, 2016
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
Chief United States District Judge
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