Gray-Davis v. The State of New York et al

Filing 7

DECISION & ORDER: It is Ordered that the # 6 Report and Recommendations by Magistrate Judge Therese Wiley Dancks is ACCEPTED and ADOPTED in its entirety. The following claims are DISMISSED with prejudice and without leave to amend: (1) all claims a gainst Defendant State of New York; (2) all claims against Defendant Onondaga County Department of Corrections; (3) all claims against Defendant Syracuse City Police Department; (4) Plaintiffs 42 U.S.C. § 1983 claims for money damages against De fendants Annucci, Stanford, Rigby, Gronau, Green, Maher, Delaney, Fregoe, Montford, Butera, and John Doe Nos. 1-4; and (5) Plaintiffs claim for violation of their Fifth and Ninth Amendment rights. The following claims shall be DISMISSED with prejudic e and without further Order of the Court UNLESS plaintiff files an Amended Complaint within 30 days of this Decision & Order: (1) Plaintiffs claims against Defendant County of Onondaga; (2) Plaintiffs claims against Defendant Hamlet of Jamesville (a/ k/a City of Jamesville); (3) Plaintiffs claims against Defendant City of Syracuse; (4) Plaintiffs claims against Defendants Butera, Blume, Cowin and John Doe No. 16; and (5) Plaintiffs claims against Defendants Annucci and Stanford (EXCEPT for their 42 U.S.C. § 1983 claims for money damages against those two Defendants in their official capacities, which claims again are dismissed with prejudice and without leave to amend). It is Ordered that any Amended Complaint shall be filed by 6/4/2015 . It is Ordered that Plaintiffs remaining claims i.e., their claims against Defendants Rigby, Gronau, Green, Maher, Delaney, Fregoe, and Montford (Remaining Defendants) for violation of Plaintiffs First, Fourth and Fourteenth Amendment rights SURVIVE the Courts initial review of the Complaint. The Clerk shall issue the summonses, along with copies of the Complaint and General Order 25 and the United States Marshal Service shall effect service of process. It is further Ordered that Plaintiffs sha ll take reasonable steps to identify Defendant John Doe Nos. 1-15 and, if necessary, make a motion seeking leave to amend her pleadings to add the proper party. {Copy sent to the pro se plaintiff by regular mail} Signed by Judge Glenn T. Suddaby on 5/5/2015. (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
LaFRANCIS GRAY-DAVIS; and MYRELL DAVIS,
Plaintiffs,
v.

5:14-CV-1490
(GTS/TWD)

STATE OF NEW YORK; PAUL RIGBY, Senior
Parole Officer; TAMMY GRONAU, Parole Officer;
MR. GREEN, Parole Officer; MR. MAHER, Parole
Officer; MS. DELANEY, Parole Officer; MR.
FREGOE, Parole Officer; MS. MONTFORD,
Supervisor Parole Officer; ROBERT BUTERA,
Parole Officer; ANTHONY J. ANNUCCI, Acting
Comm’r of Dep’t of Corr. and Cmty. Supervision;
TINA M. STANFORD, Chair of Bd. of Parole;
RANDY W. BLUME, Assist. Comm’r of Onondaga
Cnty. Dep’t of Corr.; TIMOTHY H. COWIN,
Comm’r of Onondaga Cnty. Dep’t of Corr.; CNTY.
OF ONONDAGA; ONONDAGA CNTY. DEP’T OF
CORR.; CITY OF JAMESVILLE; CITY OF
SYRACUSE; SYRACUSE CITY POLICE DEP’T;
JOHN DOE NOS. 1-4, Parole Officers; JOHN DOE
NOS. 5-15, Syracuse City Police Officers; and JOHN
DOE 16, Chief of Syracuse City Police;
Defendants.
_______________________________________________
APPEARANCES:

OF COUNSEL:

LAFRANCIS GRAY-DAVIS
Plaintiff, Pro Se
439 Gifford Street
Syracuse, New York 13204
DeROBERTS LAW FIRM
Counsel for Plaintiff Myrell Davis
333 East Onondaga Street, 3rd Floor
Syracuse, New York 13202
GLENN T. SUDDABY, United States District Judge

JEFFREY DeROBERTS, ESQ.

DECISION and ORDER
Currently before the Court, in this civil rights action filed by LaFrancis Gray-Davis and
her minor son Myrell Davis (“Plaintiffs”), against the above-captioned entities and individuals
(“Defendants”) arising from two searches by police and the institution of special conditions by
parole officers between December 2013 and April 2014, is the Report-Recommendation of
United States Magistrate Thérèse Wiley Dancks recommending that certain of Plaintiffs’ claims
be dismissed with prejudice, certain of the claims be dismissed without prejudice (and with leave
to amend as authorized by the Court), and certain of the claims survive the Court’s initial review
of Plaintiffs’ Complaint. (Dkt. No. 6.) Plaintiffs have not filed an objection to the ReportRecommendation and the deadline in which to do so has expired. (See generally Docket Sheet.)
When no objection is made to a report-recommendation, the Court subjects that reportrecommendation 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 and citations omitted).
Here, based upon a review of this matter, the Court can find no clear error in Magistrate
Judge Dancks’ thorough Report-Recommendation. (Dkt. No. 6.) Magistrate Judge Dancks
employed the proper standards, accurately recited the facts, and reasonably applied the law to
those facts. (Id.) As a result, the Report-Recommendation is accepted and adopted in its entirety
for the reasons stated therein.
2

ACCORDINGLY, it is
ORDERED that Magistrate Judge Dancks’ Report-Recommendation (Dkt. No. 6) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that the following claims are DISMISSED with prejudice and without
leave to amend:
(1)

all claims against Defendant State of New York;

(2)

all claims against Defendant Onondaga County Department of Corrections;

(3)

all claims against Defendant Syracuse City Police Department;

(4)

Plaintiffs’ 42 U.S.C. § 1983 claims for money damages against Defendants
Annucci, Stanford, Rigby, Gronau, Green, Maher, Delaney, Fregoe, Montford,
Butera, and John Doe Nos. 1-4;

(5)

Plaintiffs’ claim for violation of their Fifth and Ninth Amendment rights; and it is
further

ORDERED that the following claims shall be DISMISSED with prejudice and without
further Order of this Court UNLESS, within THIRTY (30) DAYS of the date of this Decision
and Order, Plaintiffs file an Amended Complaint correcting the pleading deficiencies referenced
in Magistrate Judge Dancks’ Report-Recommendation:
(1)

Plaintiffs’ claims against Defendant County of Onondaga;

(2)

Plaintiffs’ claims against Defendant Hamlet of Jamesville (a/k/a City of
Jamesville);

(3)

Plaintiffs’ claims against Defendant City of Syracuse;
3

(4)

Plaintiffs’ claims against Defendants Butera, Blume, Cowin and John Doe No.
16; and

(5)

Plaintiffs’ claims against Defendants Annucci and Stanford (EXCEPT for their
42 U.S.C. § 1983 claims for money damages against those two Defendants in
their official capacities, which claims again are dismissed with prejudice and
without leave to amend); and it is further

ORDERED that any Amended Complaint that Plaintiffs chose to file shall be a complete
pleading, which will supersede their original Complaint in all respects, and may not incorporate
any portion of the original Complaint by reference, in accordance with Local Rule 7.1(a)(4) of
the District’s Local Rules of Practice; and it is further
ORDERED that Plaintiffs’ remaining claims–i.e., their claims against Defendants Rigby,
Gronau, Green, Maher, Delaney, Fregoe, and Montford (“Remaining Defendants”) for violation
of Plaintiffs’ First, Fourth and Fourteenth Amendment rights–SURVIVE the Court’s initial
review of the Complaint; and it is further
ORDERED that the District Court shall issue summonses, along with copies of the
Complaint and General Order 25, to the United States Marshal for service upon the remaining
Defendants; and it is further
ORDERED that counsel for the Remaining Defendants shall file a formal response to the
surviving claims in the Complaint in accordance with Federal Rules of Civil Procedure; and it is
further

4

ORDERED that Plaintiffs shall take reasonable steps to identify Defendant John Doe
Nos. 1-15 and, if necessary, make a motion seeking leave to amend her pleadings to add the
proper party; and it is hereby
ORDERED that the Clerk of Court serve a copy of this Decision and Order upon
Plaintiff LaFrancis Gray-Davis by regular mail.
Dated: May 5, 2015
Syracuse, New York

5