Stager v. New Beginnings Home Care Inc.

Filing 10

ORDER - ORDERED that the Report and Recommendation (Dkt. No. 8) isADOPTED in its entirety; and it is further ORDERED that Stager's complaint (Dkt. No. 1) is DISMISSED as setforth below; and it is further ORDERED that Stager's HIPPA claim is DISMISSED withprejudice, and his ADA claim is DISMISSED with leave to amend in theevent he is able to show exhaustion of his administrative remedies andtimely filing of his complaint; and it is further ORDERED that Stager's stat e law claims are DISMISSED withleave to refile in the event he files an amended complaint as set forthabove because the court declines to exercise supplemental jurisdictionover them; and it is further ORDERED that Stager is granted leave to amend the complaint toallege facts to establish diversity of citizenship for his state law claims ifany such facts exist; and it is further ORDERED that, if Stager elects to file an amended complaint, heshall provide a short, plaint statements of the relevant facts, in separatelynumbered paragraphs consisting of the statement of a single set ofcircumstances, set forth in chronological order and supporting each claimas required by Federal Rules of Civil Procedure 8(a) and 10(b); and it i s further ORDERED that, if Stager wishes to proceed with this action, he mustfile an amended complaint as directed above within thirty (30) days fromthe filing date of this Order; and it is further ORDERED that, if Stager fails to timely file an amended complaint asdirected above, the Clerk shall enter judgment dismissing this case withoutfurther order of this court. Signed by Senior Judge Gary L. Sharpe on 9/26/2016. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JOSEPH W. STAGER JR.,
Plaintiff,

9:15-cv-1533
(GLS/TWD)

v.
NEW BEGINNINGS HOME CARE
INC.,
Defendant.
________________________________
ORDER
The above-captioned matter comes to this court following a Report
and Recommendation (R&R) by Magistrate Judge Thérèse Wiley Dancks,
duly filed on January 29, 2016. (Dkt. No. 7.) Following fourteen days from
the service thereof, the Clerk has sent the file, including any and all
objections filed by the parties herein.
Instead of objecting to the R&R, plaintiff pro se Joseph W. Stager Jr.
filed a letter in which he requests that the court take notice of certain
documents in support of his claims. (Dkt. No. 8.) It is generally
inappropriate to consider new arguments or evidence after an R&R has
been filed, see Smith v. Hulihan, No. 11 CV 2948, 2012 WL 4928904, at *1
(S.D.N.Y. Oct. 17, 2012) (“[N]ew arguments and factual assertions cannot

properly be raised for the first time in objections to the R & R, and indeed
may not be deemed objections at all.”), and the court declines to do so
here. Having reviewed the R&R for clear error and finding none, it is
hereby
ORDERED that the Report and Recommendation (Dkt. No. 8) is
ADOPTED in its entirety; and it is further
ORDERED that Stager’s complaint (Dkt. No. 1) is DISMISSED as set
forth below; and it is further
ORDERED that Stager’s HIPPA claim is DISMISSED with
prejudice, and his ADA claim is DISMISSED with leave to amend in the
event he is able to show exhaustion of his administrative remedies and
timely filing of his complaint; and it is further
ORDERED that Stager’s state law claims are DISMISSED with
leave to refile in the event he files an amended complaint as set forth
above because the court declines to exercise supplemental jurisdiction
over them; and it is further
ORDERED that Stager is granted leave to amend the complaint to
allege facts to establish diversity of citizenship for his state law claims if
any such facts exist; and it is further
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ORDERED that, if Stager elects to file an amended complaint, he
shall provide a short, plaint statements of the relevant facts, in separately
numbered paragraphs consisting of the statement of a single set of
circumstances, set forth in chronological order and supporting each claim
as required by Federal Rules of Civil Procedure 8(a) and 10(b); and it is
further
ORDERED that, if Stager wishes to proceed with this action, he must
file an amended complaint as directed above within thirty (30) days from
the filing date of this Order; and it is further
ORDERED that, if Stager fails to timely file an amended complaint as
directed above, the Clerk shall enter judgment dismissing this case without
further order of this court; and it is further
ORDERED that the Clerk shall provide a copy of this Order to Stager
in accordance with the Local Rules of Practice.
IT IS SO ORDERED.
September 26, 2016
Albany, New York

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