Whitehead v. Endicott Police Department et al
Filing
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DECISION AND ORDER accepting and adopting Magistrate Judge Peebles' # 7 Report and Recommendation in its entirety. Plaintiff's complaint shall be dismissed with prejudice unless within thirty (30) days of the date of this Decision and Or der, he files an Amended Complaint that corrects the pleading defects identified in the Report and Recommendation. Plaintiff's # 10 letter-motion seeking an extension of time to file an Amended Complaint is denied without prejudice as moot. T he document on the docket entitled Amended Complaint (Dkt. No. 11 ) is sua sponte STRICKEN as violative of Fed. R. Civ. P. 8(a), 10(a) and (b), and 12(b)(6), and Local Rule 7.1(a)(4) of the Local Rules of Practice for this Court. Should Plaintiff fi le an Amended Complaint within thirty days of the date of this Decision and Order, that Amended Complaint shall be referred to Magistrate Judge Peebles for his review. Signed by Chief Judge Glenn T. Suddaby on 4/10/18. (lmw) (Copy served upon pro se plaintiff via regular mail with copy of NDNY's Pro Se Handbook and Local Rules of Practice).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
JACK WHITEHEAD,
Plaintiff,
3:18-CV-0052
(GTS/DEP)
v.
VILLAGE OF ENDICOT; and
SERGEANT KETCHUM,
Defendants.
__________________________________________
APPEARANCES:
JACK WHITEHEAD, 13-B-1363
Plaintiff, Pro Se
Willard Drug Treatment Campus
7116 County Route 112
P.O. Box 303
Willard, New York 14588-0303
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by Jack Whitehead
(“ Plaintiff”) against the Village of Endicott and Sergeant Ketchum (“Defendants”) asserting
claims of false arrest and unreasonable search and seizure under 42 U.S.C. § 1983, are the
following: (1) Chief United States Magistrate Judge David E. Peebles’ Report-Recommendation
recommending that Plaintiff’s Complaint be dismissed with leave to replead; (2) Plaintiff’s
letter-motion seeking an extension of time to file an Amended Complaint; and (3) a two-page
document entitled “Amended Complaint.” (Dkt. Nos. 7, 10, 11.) Based upon a careful review
of this matter, the Court can find no clear error in the Report-Recommendation:1 Magistrate
Judge Peebles employed the proper standards, accurately recited the facts, and reasonably
applied the law to those facts. (Dkt. No. 7.) As a result, the Court accepts and adopts the
Report-Recommendation for the reasons stated therein; and Plaintiff’s Complaint shall be
dismissed with prejudice unless, within thirty days of the date of this Decision and Order, he
files an Amended Complaint that corrects the pleading defects identified in his original
Complaint.
With regard to Plaintiff’s letter-motion, because the deadline by which to file an
Amended Complaint had not been set by the time he filed his letter-motion, the letter-motion is
denied without prejudice as moot.
Finally, with regard to the two-page document entitled “Amended Complaint” that
Plaintiff has filed, while an argument exists that Plaintiff did not possess the absolute right to file
an Amended Complaint under Fed. R. Civ. P. 12(a)(1) because he had not yet served his
Complaint and no responsive pleading or motion under Fed. R. Civ. P. 12(b), (e) or (f) had yet
been filed,2 the Court need not decide that issue. This is because the two-page document that he
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).
2
See, e.g., Trustees of I.B.E.W. Local Union No. 488 Pension Fund v. Norland
Elec., Inc., 11-CV-0709, 2013 WL 785333, at *2 (D. Conn. Mar. 1, 2013) (finding that pro se
plaintiff's ability to amend complaint as of right expired where “21 days have elapsed since the
service of Plaintiffs' Complaint on May 12, 2011, and Defendant has served no responsive
pleading or motion under Rule 15(a)(1)(B)”); accord, Lavigne v. Michael’s Stores, Inc., 14-CV2
filed on March 22, 2018, was so utterly bereft any resemblance to an Amended Complaint
(lacking a caption, a “jurisdiction” section, a “parties” section, a “facts” section, a “causes of
action” section, or a “prayer for relief” section) that it can only be liberally construed as
attempting to rely on Plaintiff’s original Complaint, which is prohibited. (Dkt. No. 7, at 20.) See
also N.D.N.Y. L.R. 7.1(a)(4). Moreover, the Court suspects that Plaintiff rushed the preparation
of the document because he was laboring under the misunderstanding that his Amended
Complaint was due at the time of his Objection to the Report-Recommendation. Under the
circumstances, special solicitude warrants an Order striking the document so that Plaintiff may,
having the full benefit of the clarity that this Decision and Order hopefully brings him, amend
his Complaint properly. He is respectfully reminded that, in preparing that Amended Complaint,
he should comply with the advice given to him by Magistrate Judge Peebles on pages 19 and 20
of the Report-Recommendation. (Dkt. No. 7, at 19-20.)
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 7) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) shall be DISMISSED with
prejudice UNLESS, within THIRTY (30) DAYS of the date of this Decision and Order, he
files an Amended Complaint that corrects the pleading defects identified in the ReportRecommendation; and it is further
ORDERED that Plaintiff’s letter-motion seeking an extension of time to file an
Amended Complaint (Dkt. No. 10) is DENIED without prejudice as moot; and it is further
1717, 2015 WL 1826169, at *2-3 (D. Conn. Apr. 22, 2015).
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ORDERED that the document on the docket entitled “Amended Complaint” (Dkt. No.
11) is sua sponte STRICKEN as violative of Fed. R. Civ. P. 8(a), 10(a) and (b), and 12(b)(6),
and Local Rule 7.1(a)(4) of the Local Rules of Practice for this Court; and it is further
ORDERED that, should Plaintiff file an Amended Complaint within thirty days of the
date of this Decision and Order, that Amended Complaint shall be referred to Magistrate Judge
Peebles for his review; and it is further
ORDERED that the Clerk of Court shall mail to Plaintiff a courtesy copy of the
District’s Pro Se Handbook and Local Rules of Practice for the Court.
Dated: April 10, 2018
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
Chief United States District Judge
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