Cruz v. The State of New York et al

Filing 16

ORDER adopting 15 Report and Recommendations in its entirety; denying 8 Motion for Preliminary Injunction and temporary restraining order as moot; denying 9 Motion to Amend/Correct. ORDERED that Plaintiff's petition for writ of habe as corpus (Dkt. No. 1 ) is DISMISSED WITH PREJUDICE and that no state court proceedings have been properly removed to this Court. ORDERED that Plaintiff's complaint (Dkt. No. 1-2) is DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(ii) for failur e to state a claim upon which relief may be granted, and that, with the exception of Plaintiff's sex discrimination claim which is the subject of his Human Rights Division complaint, the dismissal is WITH PREJUDICE. ORDERED that Plaintiff is gra nted leave to file an amended complaint with respect to the sex discrimination claim which is the subject of his Human Rights Division complaint, within thirty (30) days from the date of this Order; if Plaintiff fails to file an amended complaint wit hin the thirty (30) days, that this action be closed without further Order of the Court. ORDERED that the determinations in this matter have no effect on the legal rights of Plaintiff's minor children. Signed by Judge Brenda K. Sannes on 12/4/17. (Copy served on plaintiff via regular and certified mail)(rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________
KIPLIND L. CRUZ,

Plaintiff,
v.

5:17-CV-0510 (BKS/TWD)

THE STATE OF NEW YORK, et al.,
Defendants.
________________________________________________
Appearances:
Kiplind L. Cruz
Cincinnatus, NY
Plaintiff, pro se

Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
On May 9, 2017, pro se Plaintiff Kiplind L. Cruz initiated this action by filing a
document described as a “petition for writ of habeas corpus” and “defendants federal removal
from State of New York, County of Cortland, Chenango, Onondaga, New York State Cortland
County Combined Court” to this Court (Dkt. No. 1), with an attached “Complaint” under
42 U.S.C. §§ 1983, 1985, and 1986 (Dkt. No. 1-2). Plaintiff later filed a motion for a temporary
restraining order and a preliminary injunction (Dkt. No. 8) and a motion to amend (Dkt. No. 9).
This matter was referred to United States Magistrate Judge Thérèse Wiley Dancks who, on
October 27, 2017, issued an Order and Report-Recommendation recommending that: 1) any state
court proceedings arguably covered by Plaintiff’s notice of removal be remanded to state court,
and the Court find that no state court proceedings have been properly removed; 2) Plaintiff’s

petition for writ of habeas corpus be dismissed with prejudice; 3) Plaintiff’s motion to amend be
denied; 4) Plaintiff’s complaint be dismissed on initial review under 28 U.S.C.
§ 1915(e)(2)(B)(ii), and, with the exception of Plaintiff’s sex discrimination claim which is the
subject of his Human Rights Division complaint, the dismissal be with prejudice; 5) Plaintiff’s
motion for a temporary restraining order and a preliminary injunction be denied as moot, or in
the alternative, on the merits; and 6) the Court order that the determinations in this matter have
no effect on the legal rights of Plaintiff’s minor children. Dkt. No. 15. Magistrate Judge Dancks
advised Plaintiff that, under 28 U.S.C. § 636(b)(1), he had fourteen days within which to file
written objections to the report, and that the failure to object to the report within fourteen days
would preclude appellate review. Id. at 49. No objections to the Report-Recommendation have
been filed.
As no objections to the Report-Recommendation have been filed, and the time for filing
objections has expired, the Court reviews the Report-Recommendation for clear error. See
Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory
committee’s note to 1983 amendment. Having reviewed the Report-Recommendation for clear
error and found none, the Court adopts it in its entirety.
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 15) is ADOPTED in its
entirety; and it is further
ORDERED that Plaintiff’s petition for writ of habeas corpus (Dkt. No. 1) is
DISMISSED WITH PREJUDICE; and it is further
ORDERED that no state court proceedings have been properly removed to this Court;
and it is further

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ORDERED that Plaintiff’s motion to amend (Dkt. No. 9) is DENIED; and it is further
ORDERED that Plaintiff’s complaint (Dkt. No. 1-2) is DISMISSED under 28 U.S.C.
§ 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted, and that, with
the exception of Plaintiff’s sex discrimination claim which is the subject of his Human Rights
Division complaint, the dismissal is WITH PREJUDICE; and it is further
ORDERED that Plaintiff is granted leave to file an amended complaint with respect to
the sex discrimination claim which is the subject of his Human Rights Division complaint,
within thirty (30) days from the date of this Order; and it is further
ORDERED that if Plaintiff fails to file an amended complaint within the thirty (30) days,
that this action be closed without further Order of the Court; and it is further
ORDERED that Plaintiff’s motion for a temporary restraining order and a preliminary
injunction (Dkt. No. 8) is DENIED AS MOOT; and it is further
ORDERED that the determinations in this matter have no effect on the legal rights of
Plaintiff’s minor children, and it is further
ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with
the Local Rules.
IT IS SO ORDERED.
Dated: December 4, 2017

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