Moss v. Macchione

Filing 6

ORDER adopting 4 Report and Recommendations. Plaintiff's Complaint is dismissed, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted. Plaintiff may file an Amended Complaint within thirty (30) days from the date of this Order. If Plaintiff fails to file an Amended Complaint within thirty (30) days from the date of this Order, the Clerk is directed to enter Judgment without further Order from the Court. Signed by Judge Brenda K. Sannes on 11/8/17. (Copy served on plaintiff via regular and certified mail)(rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________
KYRA MOSS,
Plaintiff,
v.

1:17-CV-0876 (BKS/DJS)

ERIKA MACCHIONE, La Luce Boutique,
Defendant.
________________________________________________
Appearances:
Kyra Moss
Albany, NY
Plaintiff, pro se

Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
On August 9, 2017, Plaintiff Kyra Moss commenced this action pro se, and filed a
motion for leave to proceed in forma pauperis. Dkt. No. 1. This matter was referred to United
States Magistrate Judge Daniel J. Stewart who, on September 11, 2017, granted Plaintiff’s
motion to proceed in forma pauperis and issued a Report-Recommendation recommending that
Plaintiff’s Complaint be dismissed pursuant to 28 U.S.C. § 1915 for failure to state a claim on
which relief may be granted. Dkt. No. 4. In light of her pro se status, Magistrate Judge Stewart
recommended that Plaintiff be given an opportunity to amend her Complaint. Id. at 5.
Magistrate Judge Stewart advised the Plaintiff that under 28 U.S.C. § 636(b)(1), she had fourteen
days within which to file written objections to the report, and that the failure to object to the

report within fourteen days would preclude appellate review. Dkt. No. 4, pp. 6-7. No objections
to the Report-Recommendation have been filed.
As no objections to the Report-Recommendation have been filed, and the time for filing
objections has expired, the Court reviews the Report-Recommendation for clear error. See
Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory
committee’s note to 1983 amendment. Having reviewed the Report-Recommendation for clear
error and found none, the Court adopts it in its entirety.
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 4) is ADOPTED in its entirety;
and it is further
ORDERED that Plaintiff’s Complaint is dismissed, pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted; and it is further
ORDERED that Plaintiff may file an Amended Complaint within thirty (30) days from
the date of this Order; and it is further
ORDERED that if Plaintiff fails to file an Amended Complaint within thirty (30) days
from the date of this Order, the Clerk is directed to enter Judgment without further Order from
the Court; and it is further
ORDERED that the Clerk serve a copy of this Order upon Plaintiff in accordance with
the Local Rules.
IT IS SO ORDERED.
Dated: November 8, 2017

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