Helmer (Menard) v. Capital One et al

Filing 6

DECISION AND ORDER that Magistrate Judge Dancks' Report-Recommendation (Dkt. No. 5 ) is ACCEPTED and ADOPTED in its entirety. Plaintiff's Complaint (Dkt. No. 1 ) shall be sua sponte DISMISSED with prejudice UNLESS, within THIRTY (30) DAYS of the date of this Decision and Order, Plaintiff files an AMENDED COMPLAINT correcting the pleading defects identified in the Report-Recommendation. Should Plaintiff wish to file such an Amended Complaint in this action, that Amended Complain t must be a complete pleading which complies with the pleading standards set forth in Federal Rules of Civil Procedure 8 and 10 and Local Rule 10.1 of the District's Local Rules of Practice, and which will supercede and replace his original C omplaint in all respects. Should Plaintiff file an Amended Complaint within the above-referenced thirty (30) day time period, the Amended Complaint shall be returned to Magistrate Judge Dancks for further review pursuant to 28 U.S.C. § 1915. Signed by U.S. District Judge Glenn T. Suddaby on 1/17/2023. (Copy served upon plaintiff via regular mail) (sal)

Case 6:22-cv-01082-GTS-TWD Document 6 Filed 01/17/23 Page 1 of 3

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
FRANCIS HELMER (MENARD), f/k/a Francis Menard,
Plaintiff,
6:22-CV-1082
(GTS/TWD)

v.
CAPITAL ONE; and CAMILLE,
ID #GFB717, Fraud Investigator – Capital one,
Defendants.
________________________________________________
APPEARANCES:
FRANCIS HELMER (MENARD)
Plaintiff, Pro Se
4399 Lee Center Taberg Road
Taberg, New York 13471
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER

Currently before the Court, in this pro se civil rights action filed by Francis Helmer
(Menard) (“Plaintiff”) against the above-captioned entity and individual (“Defendants”), is
United States Magistrate Judge Thérèse Wiley Dancks’ Report-Recommendation recommending
that Plaintiff’s Complaint be sua sponte dismissed, with leave to amend, for failure to state a
claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). (Dkt. No. 5.) Plaintiff has not filed an
Objection to the Report-Recommendation, and the deadline by which to do so has expired. (See
generally Docket Sheet.) After carefully reviewing the relevant papers herein, including
Magistrate Judge Dancks’ thorough Report-Recommendation, the Court can find no clear error in

Case 6:22-cv-01082-GTS-TWD Document 6 Filed 01/17/23 Page 2 of 3

the Report-Recommendation:1 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 set forth therein.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Dancks’ Report-Recommendation (Dkt. No. 5) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) shall be sua sponte DISMISSED
with prejudice UNLESS, within THIRTY (30) DAYS of the date of this Decision and Order,
Plaintiff files an AMENDED COMPLAINT correcting the pleading defects identified in the
Report-Recommendation; and it is further
ORDERED that, should Plaintiff wish to file such an Amended Complaint in this action,
that Amended Complaint must be a complete pleading which complies with the pleading
standards set forth in Federal Rules of Civil Procedure 8 and 10 and Local Rule 10.1 of the
District’s Local Rules of Practice, and which will supercede and replace his original Complaint
in all respects; and it is further
ORDERED that, should Plaintiff file an Amended Complaint within the abovereferenced thirty (30) day time period, the Amended Complaint shall be returned to Magistrate

1

When no objection is made to a report-recommendation, the Court subjects that
report-recommendation 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 t 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 omitted).
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Case 6:22-cv-01082-GTS-TWD Document 6 Filed 01/17/23 Page 3 of 3

Judge Dancks for further review pursuant to 28 U.S.C. § 1915.
Dated: January 17, 2023
Syracuse, New York

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