Abrams v. Sears Roebuck and Co. et al

Filing 6

DECISION & ORDER: It is hereby ordered that the # 4 Report and Recommendations is ACCEPTED and ADOPTED in its entirety, Plaintiff's claims against Defendant "Eric (Store Manager)" are sua sponte DISMISSED without leave to amend pursu ant to 28 USC section 1915, the remainder of Plaintiff's Complaint shall be sua sponte DISMISSED pursuant to 28 USC section 1915 without further Order of this Court, unless within 30 days, plaintiff submits an Amended Complaint that complies wit h the Report and Recommendation as well as this Decision and Order. In the event that plaintiff files an Amended Complaint within 30 days, the Clerk of Court is directed to return the file to the Magistrate Judge for further review. Signed by Judge Glenn T. Suddaby on 2/14/2013. {Copy sent to pro se plaintiff by regular mail} (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
OMAR ABRAMS,
Plaintiff,
6:12-CV-1701
(GTS/TWD)

v.
SEARS ROEBUCK AND CO., and
JOHN DOE, Eric (Store Manager),
Defendants.
__________________________________________
APPEARANCES:

OF COUNSEL:

OMAR ABRAMS
Plaintiff, Pro Se
1011 Seymour Avenue
Utica, New York 13501
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this Title VII employment civil rights action filed pro se by
Omar Abrams (“Plaintiff”) against the above-captioned company and individual (“Defendants”)
arising from Defendants’ termination of Plaintiff’s employment following his criminal
conviction for an unspecified offense, is United States Magistrate Judge Therese Wiley Dancks’
Report-Recommendation recommending that (1) Plaintiff’s claims against Defendant “Eric
(Store Manager)” be sua sponte dismissed without prior leave to amend pursuant to 28 U.S.C. §
1915 because individuals are not subject to liability under Title VII, (2) Plaintiff’s claims against
Defendant Sears Roebuck and Company be sua sponte dismissed with prior leave to amend
pursuant to 28 U.S.C. § 1915, because it is appears that, through better pleading, Plaintiff might
be able to correct the pleading deficiencies in those claims, and (3) the Court decline to exercise
supplemental jurisdiction over Plaintiff’s (implicit) Human Rights Law claim should the Court

come to dismiss his amended Title VII claim against Defendant Sears and Roebuck and
Company. (Dkt. No. 4.)
On January 14, 2013, Plaintiff filed a one-paragraph Objection to Magistrate Judge
Dancks’ Report-Recommendation. (Dkt. No. 5.) Liberally construed, Plaintiff’s Objection
requests leave to amend his Complaint to (1) add new factual allegations and exhibits to
substantiate his Title VII claim against Defendant Sears Roebuck and Company, and (2)
expressly assert a supplemental state law claim under New York’s Human Rights Law
(specifically, N.Y. Corr. Law § 752). (Id.)
Because Plaintiff has offered no specific challenge to the Report-Recommendation, the
Court subjects the Report-Recommendation to only a clear error review. Fed. R. Civ. P. 72(b),
Advisory Committee Notes (1983). After carefully reviewing all of the papers in this action,
including Magistrate Judge Dancks' Report-Recommendation and Plaintiff's Objections thereto,
the Court concludes that Magistrate Judge Dancks' Report-Recommendation is correct in all
respects. (Dkt. No. 4.) Magistrate Judge Dancks employed the proper standards, accurately
recited the facts, and reasonably applied the law to those facts. (Id.) As a result, the Court
adopts the Report-Recommendation in its entirety for the reasons stated therein. (Id.)
The Court would add only four brief points. First, Plaintiff’s Amended Complaint must
be filed within thirty (30) days of the date of this Decision and Order. If it is not so filed, his
entire action will be dismissed. Second, in his Amended Complaint, Plaintiff may not
incorporate by reference any portion of his original Complaint. Third, in his Amended
Complaint, Plaintiff may not re-assert his dismissed Title VII claim against Defendant “Eric
(Store Manager).” Fourth, and finally, in his Amended Complaint, Plaintiff may indeed (1) add
new factual allegations and exhibits to substantiate his Title VII claim against Defendant Sears
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Roebuck and Company, and (2) expressly assert a supplemental state law claim under New
York’s Human Rights Law (specifically, N.Y. Corr. Law § 752). However, Plaintiff is advised
that, if the Court comes to dismiss his amended Title VII claim against Defendant Sears Roebuck
and Company, then the Court will decline to exercise supplemental jurisdiction over Plaintiff’s
Human Rights Law claim.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Dancks’ Report-Recommendation (Dkt. No. 4) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff’s claims against Defendant “Eric (Store Manager)” (Dkt. No.
1) are sua sponte DISMISSED without leave to amend as to pursuant to 28 U.S.C. § 1915 ; and
it is further
ORDERED that the remainder of Plaintiff’s Complaint (Dkt. No. 1) shall be sua sponte
DISMISSED pursuant to 28 U.S.C. § 1915 without further Order of this Court, unless, within
THIRTY (30) DAYS of the date of this Decision and Order, Plaintiff submits an Amended
Complaint that complies with Magistrate Judge Dancks’ Report-Recommendation (Dkt. No. 4),
as well as this Decision and Order.
In the event that Plaintiff files an Amended Complaint within thirty (30) days of the date
of this Decision and Order, the Clerk of the Court is directed to return the file to the Magistrate
Judge for further review.
Dated: February 14, 2013
Syracuse, New York

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