Jendrzejczak v. Williams et al
Filing
11
DECISION and ORDER: ORDERED that Magistrate Judge Dancks' Report-Recommendation is ACCEPTED and ADOPTED in its entirety: ORDERED that the following federal claims in Plaintiff's Amended Complaint are DISMISSED with prejudice; ORDERED that the remaining federal claims in Plaintiff's Amended Complaint shall be DISMISSED with prejudice UNLESS, within THIRTY (30) DAYS of the date of this Decision and Order, Plaintiff files a Second Amended Complaint that corrects the pleading def ects identified by Magistrate Judge Dancks in her Report-Recommendation in the following federal claims; ORDERED that the Court declines to exercise supplemental jurisdiction over Plaintiff's state law claims, without prejudice to re-filing in state court and subject to reconsideration in the event Plaintiff files a Second Amended Complaint; ORDERED that, in the event that Plaintiff files a Second Amended Complaint within thirty (30) days from 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. {Decison & Order served on Plaintiff via regular mail} Signed by Judge Glenn T. Suddaby on 6/6/2014. (mgh)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
VINCENT JENDRZEJCZAK,
Plaintiff,
6:13-CV-1239
(GTS/TWD)
v.
DENNIS WILLIAMS, Bldg. Manager for New York
State Office of Gen. Servs. (O.G.S.); BRIAN ROE,
Contract Manager/Supervisor, Altamont Program, Inc.,
and subcontractor for New York State O.G.S.; KELLIE
ROE, Employee/Supervisor, Altamont Program, Inc.,
and subcontractor for New York State O.G.S.; and
PETER YOUNG, individually and in his official
capacity as CEO/supervisor for Altamont Program, Inc.,
Defendants.
________________________________________________
APPEARANCES:
OF COUNSEL:
VINCENT JENDRZEJCZAK, 13-A-0154
Plaintiff, Pro Se
Mid-State Correctional Facility
P.O. Box 2500
Marcy, New York 13403
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in the above-captioned pro se civil rights action filed by
Vincent Jendrzejczak (“Plaintiff”) against the four above-captioned individuals (“Defendants”),
is United States Magistrate Thérèse Wiley Dancks’ Report-Recommendation recommending that
Plaintiff’s Amended Complaint be sua sponte dismissed, with leave to amend certain of the
claims, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief
can be granted. (Dkt. No. 10.) Plaintiff has not filed an objection to the ReportRecommendation, and the deadline by which to do so has expired. (See generally Docket
Sheet.) After carefully reviewing the relevant filings in this action, the Court can find no clear
error in the Report-Recommendation: Magistrate Judge Dancks employed the proper standards,
accurately recited the facts, and reasonably applied the law to those facts. As a result, the
Report-Recommendation is accepted and adopted in its entirety for the reasons stated therein.
(Dkt. No. 10.)
The Court would add only two brief points. First, Magistrate Judge Dancks has
recommended that–out of special solicitude to Plaintiff due to his pro se status–he be afforded an
opportunity to amend certain of his deficient federal claims. However, affording such an
opportunity to amend is not required where–as here–the pro se plaintiff has already been
afforded the opportunity to amend his claims. See Abascal v. Hilton, 04-CV-1401, 2008 WL
268366, at *8 (N.D.N.Y. Jan. 13, 2008) (Kahn, J., adopting, on de novo review,
Report-Recommendation by Lowe, M.J.) (“Of course, granting a pro se plaintiff an opportunity
to amend is not required where the plaintiff has already been given a chance to amend his
pleading.”), aff’d, 357 F. App’x 388 (2d Cir. 2009).1 As a result, ordinarily, the Court would
1
See also Foman v. Davis, 371 U.S. 178, 182 (1962) (explaining that denial of
leave to amend not abuse of discretion movant has repeatedly failed to cure deficiencies in
pleading); Coleman v. brokersXpress, LLC, 375 F. App'x 136, 137 (2d Cir. 2010) (“Nor can we
conclude that the district court abused its discretion in denying Coleman leave to amend. The
district court afforded Coleman one opportunity to amend the complaint, and Coleman made no
specific showing as to how he would cure the defects that persisted if given a second opportunity
to amend.”); Dyson v. N.Y. Health Care, Inc ., 353 F. App'x 502, 503-03 (2d Cir. 2009) (“[T]he
district court did not abuse its discretion by dismissing Dyson's third amended complaint with
prejudice. . . . [T]he district court afforded Dyson three opportunities to file an amended
complaint so as to comply with Rule 8(a)(2), and, despite these, she did not plead any facts
sufficient to show that she was plausibly entitled to any relief.”); Salahuddin v. Cuomo, 861 F.2d
40, 42 (2d Cir. 1988) (“We do not mean to imply that the court has no power to dismiss a prolix
complaint without leave to amend in extraordinary circumstances, such as where leave to amend
has previously been given and the successive pleadings remain prolix and unintelligible.”);
Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. 1972) (affirming dismissal of pro se plaintiff’s
amended complaint without leave to amend, for failure to state a claim upon which relief can be
granted, without engaging in analysis of whether second amended complaint would be futile);
Yang v. New York City Trans. Auth., 01-CV-3933, 2002 WL 31399119, at *2 (E.D.N.Y. Oct. 24,
2002) (“Yang's amended complaint fails to remedy this defect in his pleadings. . . . His equal
protection claim is dismissed.”), aff’d, 71 F. App’x 90 (2d Cir. 2003).
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simply dismiss the claims in question. However, Magistrate Judge Dancks’ ReportRecommendation has been pending more than four months; and, during that time period,
Plaintiff (who does not appear to be an experienced litigant) may have chosen not to file an
Objection and instead relied on the prospect of filing a Second Amended Complaint. As a result,
the Court will accept and adopt this aspect of Magistrate Judge Dancks’ ReportRecommendation.
Second, Magistrate Judge Dancks recommends that, while the Court dismiss certain of
Plaintiff’s federal claims with prejudice, it dismiss the remainder of Plaintiff’s federal claims
“with leave to amend.” For various reasons, the Court prefers not to dismiss a pleading and then
permit a possible amendment of that (dismissed) pleading. As a result, the Court will condition
the dismissal of certain of Plaintiff’s federal claims on his failure to successfully amend those
claims (i.e., so as to render them legally cognizable).
ACCORDINGLY, it is
ORDERED that Magistrate Judge Dancks’ Report-Recommendation is ACCEPTED
and ADOPTED in its entirety; and it is further
ORDERED that the following federal claims in Plaintiff’s Amended Complaint (Dkt.
No. 8) are DISMISSED with prejudice:
(1)
Plaintiff’s claims under the False Claims Act, 31 U.S.C. § 3729, et seq.;
(2)
Plaintiff’s official capacity claim for money damages against Defendant
Williams, under 42 U.S.C. § 1983;
(3)
Plaintiff’s First Cause of Action against Defendant Williams, to the extent
that it arises under the Fifth and/or Ninth Amendments;
(4)
Plaintiff’s Third Cause of Action against Defendants Brian and Kellie
Roe, and Defendant Williams, to the extent that it arises under the Ninth
Amendment;
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(5)
Plaintiff’s Fourth Cause of Action against Defendant Brian and Kellie
Roe, to the extent that it arises under the Ninth Amendment;
(6)
Plaintiff’s Fifth Cause of Action against Defendants Brian and Kellie Roe,
to the extent that it arises under the Ninth Amendment;
(7)
Plaintiff’s Seventh Cause of Action against Defendant Kellie Roe, to the
extent that it arises under the Ninth Amendment; and
(8)
Plaintiff’s Eighth Cause of Action against Defendants, to the extent that it
arises under the Fifth and/or Ninth Amendments;
(9)
Plaintiff’s Ninth Cause of Action against Defendants, to the extent that it
arises under the Fifth and/or Ninth Amendments; and
(10)
Plaintiff’s Tenth Cause of Action against Defendants, to the extent that it
arises under the Fifth and/or Ninth Amendments; and it is further
ORDERED that the remaining federal claims in Plaintiff’s Amended Complaint (Dkt.
No. 8) shall be DISMISSED with prejudice UNLESS, within THIRTY (30) DAYS of the date
of this Decision and Order, Plaintiff files a Second Amended Complaint that corrects the
pleading defects identified by Magistrate Judge Dancks in her Report-Recommendation in the
following federal claims:
(1)
Plaintiff’s First Cause of Action against Defendant Williams, to the extent
that it arises under the Fourteenth Amendment;
(2)
Plaintiff’s Second Cause of Action against Defendants Brian and Kellie
Roe, to the extent that it arises under the Thirteenth Amendment;
(3)
Plaintiff’s Third Cause of Action against Defendants Brian and Kellie
Roe, and Defendant Williams, to the extent that it arises under a federal
statute or constitutional amendment other than the Ninth Amendment;
(4)
Plaintiff’s Fourth Cause of Action against Defendants Brian and Kellie
Roe, to the extent that it arises under a federal statute or constitutional
amendment other than the Ninth Amendment;
(5)
Plaintiff’s Fifth Cause of Action against Defendants Brian and Kellie Roe,
to the extent that it arises under the Eighth Amendment;
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(6)
Plaintiff’s Sixth Cause of Action against Defendant Brian Roe, to the
extent that it arises under the Fifth and/or Fourteenth Amendment;
(7)
Plaintiff’s Seventh Cause of Action against Defendant Kellie Roe, to the
extent that it arises under the First and/or Fourteenth Amendments;
(8)
Plaintiff’s Eighth Cause of Action against Defendants, to the extent that it
arises under the First and/or Fourteenth Amendments;
(9)
Plaintiff’s Ninth Cause of Action against Defendants, to the extent that it
arises under the Fourteenth Amendment; and
(10)
Plaintiff’s Tenth Cause of Action against Defendants, to the extent that it
arises under the First and/or Fourteenth Amendments; and it is further
ORDERED that the Court declines to exercise supplemental jurisdiction over Plaintiff’s
state law claims, without prejudice to re-filing in state court and subject to reconsideration in the
event Plaintiff files a Second Amended Complaint; and it is further
ORDERED that, in the event that Plaintiff files a Second Amended Complaint within
thirty (30) days from 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: June 6, 2014
Syracuse, New York
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