DeSantis v. Seager

Filing 8

MEMORANDUM-DECISION AND ORDER: Adopting the # 4 Report and Recommendations of Magistrate Judge Lowe with the following exception. The Complaint will be Dismissed automatically within 30 days of the date of this Order, unless Plaintiff files a non-f rivolous Amended Complaint that states a claim upon which relief may be granted. If Plaintiff files an Amended Complaint it is Ordered that the file be returned to the Court for further review. It is Further Ordered that Plaintiff's # 2 Motion for Leave to Proceed in forma pauperis is Granted. Signed by Chief Judge Norman A. Mordue on 7/7/2009. {Copy served upon pro se Plaintiff by regular mail} (mae)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
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DAVID DeSANTIS, Plaintiff, -vTHE STATE OF NEW YORK and JUDGE KIMBERLY SEAGER, Defendants.
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5:09-CV-530 (NAM/GHL)

APPEARANCES: David DeSantis Plaintiff, pro se

Hon. Norman A. Mordue, Chief U.S. District Judge: MEMORANDUM-DECISION AND ORDER
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Plaintiff has filed a complaint (Dkt. No. 1) and moved for leave to proceed in forma pauperis (Dkt. No. 2). The complaint seeks injunctive, declaratory, and monetary relief against Oswego County Family Court Judge Kimberly Seager and the State of New York. United States Magistrate Judge George H. Lowe reviewed the application and concluded that Judge Seager enjoyed absolute immunity for the actions alleged in the complaint, that the claim for money
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damages against New York State was barred by the Eleventh Amendment, and that there was no ground for any other relief. He recommends dismissal with leave to file an amended complaint within 30 days. Plaintiff has submitted an objection (Dkt. No. 5). In view of plaintiff's objections, pursuant to 28 U.S.C. § 636(b)(1)(C), this Court conducts a de novo review of the matters raised in the Report and Recommendation. Upon de novo review the Court finds, for the reasons set

forth in the Report and Recommendation, that the complaint is frivolous and fails to state a cause of action. See 28 U.S.C. § 1915(e)(2)(B). Accordingly, the Court adopts the Report and Recommendation except that, rather than dismiss with leave to replead, the Court holds that the action will be dismissed automatically within 30 days of the date of this Memorandum-Decision and Order unless within that time period plaintiff files a non-frivolous amended complaint that states a claim on which relief may be granted. It is therefore ORDERED that the Report and Recommendation of United States Magistrate Judge George H. Lowe (Dkt. No. 4) is adopted except as set forth in the following ordering paragraph; and it is further ORDERED that the complaint will be 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; and it is further ORDERED that upon the filing of an amended complaint, the file in this matter be returned to the Court for further review; and it is further ORDERED that plaintiff's in forma pauperis application (Dkt. No. 2) is granted. 1
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IT IS SO ORDERED. Date: July 7, 2009 Syracuse, New York

1 Although the application to proceed in forma pauperis has been granted, plaintiff will still be required to pay fees that he may incur in this action, including copying and/or witness fees.

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