DeSantis v. Seager

Filing 10

REPORT-RECOMMENDATION AND ORDER: It is Recommended that Plaintiff's # 9 Amended Complaint be dismissed pursuant to 28 U.S.C. 1915(e)(2)(B). It is Ordered that objections to the R&R are due by 8/11/2009. Failure to timely file objections will preclude appellate review. Case Review Deadline 8/17/2009. Signed by Magistrate Judge George H. Lowe on 7/28/2009. {Clerk has served a copy upon pro se Plaintiff by regular mail} (mae)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK DAVID DESANTIS, Plaintiff, v. STATE OF NEW YORK and JUDGE KIMBERLY SEAGER, Defendants. APPEARANCES DAVID DESANTIS Plaintiff pro se 12 Schuyler Street, Apt. 104 Oswego, NY 13126 GEORGE H. LOWE, United States Magistrate Judge REPORT-RECOMMENDATION & ORDER The Clerk has sent to the Court for review an amended complaint submitted for filing by pro se Plaintiff David DeSantis. Dkt. No. 9. Plaintiff filed his original complaint on May 5, 2009, seeking injunctive, declaratory, and monetary relief against Oswego County Family Court Judge Kimberly Seager and the State of New York. Dkt. No. 1. I recommended that the complaint be dismissed because it failed to state a claim on which relief may be granted; and recommended that Plaintiff may file an amended complaint. Dkt. No. 4. Plaintiff submitted an objection to the Report-Recommendation. Dkt. No. 5. Chief U.S. District Court Judge Norman A. Mordue conducted a de novo review of the matters raised in the Report and Recommendation. Dkt. No. 8. He concluded that, for the reasons set forth in the Report and Recommendation, the complaint is frivolous and fails to state a cause of action. Id. at pp. 1-2. The Report and Recommendation was adopted, except that rather than dismissing with leave to replead, the 5:09-CV-0530 (NAM/GHL) complaint was "dismissed automatically under 28 U.S.C. 1915(e)(2)(B) without further Order of the Court unless, within 30 days of the date of this Memorandum-Decision and Order, plaintiff files a non-frivolous amended complaint that states a claim on which relief may be granted." Id. at p. 3 (emphasis in original). Currently before me is Plaintiff's amended complaint, which is titled "Non-frivolous Amended Complaint." Dkt. No. 9. In the amended complaint, which is one single-spaced paragraph in length, Plaintiff asserts that his constitutional rights were violated by "a [female] judge in the Superior Court of Oswego County[,] State of New York." Id. Plaintiff fails to state when or how the alleged violations occurred. In light of the foregoing, the amended complaint fails to state a claim on which relief may be granted and should be dismissed pursuant to 28 U.S.C. 1915(e)(2)(B). WHEREFORE, it is hereby RECOMMENDED, that Plaintiff's amended complaint (Dkt. No. 9) be dismissed pursuant to 28 U.S.C. 1915(e)(2)(B); and it is further ORDERED, that the Clerk serve a copy of this Report-Recommendation & Order on Plaintiff. Pursuant to 28 U.S.C. 636(b)(1), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e). Dated: July 28, 2009 Syracuse, New York -2-

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