Credell v. Dawley et al

Filing 9

ORDER - ORDERED that the Order and Report-Recommendation and Order (Dkt. No. 5) is ADOPTED in its entirety; and it is further ORDERED that plaintiff's Fourth Amendment illegal search and seizure claim is dismissed without prejudice with leave to amend for failure to state a claim against Sgt. Lawlee; and it is further ORDERED that plaintiff's Fourth Amendment illegal search and seizure claim is allowed to proceed against defendants Det. Matt Dawley and P.O. J. Giaquinto, a nd that defendants, or their counsel, are required to file a response as provided for in Rule 12 of the Federal Rules of Civil Procedure; and it is further ORDERED that plaintiff's Fourteenth Amendment Due Process claim is dismissed without prejudice and with leave to amend for failure to state a claim; and it is further ORDERED that plaintiff is instructed that any amended complaint be a complete pleading that supersedes his original Complaint in all respects (and does not incorpor ate by reference any portion of his original Complaint.) Plaintiff is directed to comply in all respects with Rules 8(a) and 10(b) of the Federal Rules of Civil Procedure, which require, inter alia, that the amended complaint contain a short and pl ain statement of each claim showing that plaintiff is entitled to relief, and that he states his claims in numbered paragraphs, each limited as far as practical to a single set of circumstances; and it is further ORDERED that the court affords the p laintiff thirty (30) days from the date of this order, to file an amended complaint in which the plaintiff filed on August 17, 2016, (Dkt. No. 8), a complete pleading that supersedes his original complaint in all respects and shall not include any cl aims that have been dismissed with prejudice by this court; and it is further ORDERED that the amended complaint, (Dkt. No. 8), is referred to Magistrate Judge Therese Wiley Dancks for compliance with this court's order; and it is further ORDERED that the clerk of the court serve a copy of this order upon the parties in accordance with this courts Local Rules. Signed by Senior Judge Gary L. Sharpe on 8/30/2016. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DARNELL CREDELL,
Plaintiff,

7:16-cv-857
(GLS/TWD)

v.
DET. MATT DAWLEY et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
DARNELL CREDELL
Plaintiff, pro se
15-B-3607
Orleans Correctional Facility
3531 Gaines Basin Road
Albion, New York 14411
Gary L. Sharpe
Senior District Judge
ORDER
The above-captioned matter comes to this court following a ReportRecommendation and Order by Magistrate Judge Therese Wiley Dancks,
duly filed on August 4, 2016. (Dkt. No. 5.) Following fourteen days from
the service thereof, the Clerk has sent the file, including any and all
objections filed by the parties herein.

No objections having been filed1, and the court having reviewed the
Report-Recommendation for clear error, it is hereby
ORDERED that the Order and Report-Recommendation and Order
(Dkt. No. 5) is ADOPTED in its entirety; and it is further
ORDERED that plaintiff’s Fourth Amendment illegal search and
seizure claim is dismissed without prejudice with leave to amend for failure
to state a claim against Sgt. Lawlee; and it is further
ORDERED that plaintiff’s Fourth Amendment illegal search and
seizure claim is allowed to proceed against defendants Det. Matt Dawley
and P.O. J. Giaquinto, and that defendants, or their counsel, are required
to file a response as provided for in Rule 12 of the Federal Rules of Civil
Procedure; and it is further
ORDERED that plaintiff’s Fourteenth Amendment Due Process claim
is dismissed without prejudice and with leave to amend for failure to state a
claim; and it is further
ORDERED that plaintiff is instructed that any amended complaint be
a complete pleading that supersedes his original Complaint in all respects
1

While plaintiff did not file any objections to the Order and Report-Recommendation,
he did file an amended complaint. (Dkt. No. 8.) The amended complaint will be addressed in
due course.

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(and does not incorporate by reference any portion of his original
Complaint.) Plaintiff is directed to comply in all respects with Rules 8(a)
and 10(b) of the Federal Rules of Civil Procedure, which require, inter alia,
that the amended complaint contain a short and plain statement of each
claim showing that plaintiff is entitled to relief, and that he states his claims
in numbered paragraphs, each limited as far as practical to a single set of
circumstances; and it is further
ORDERED that the court affords the plaintiff thirty (30) days from the
date of this order, to file an amended complaint in which the plaintiff filed
on August 17, 2016, (Dkt. No. 8), a complete pleading that supersedes his
original complaint in all respects and shall not include any claims that have
been dismissed with prejudice by this court; and it is further
ORDERED that the amended complaint, (Dkt. No. 8), is referred to
Magistrate Judge Therese Wiley Dancks for compliance with this court’s
order; and it is further
ORDERED that the clerk of the court serve a copy of this order upon
the parties in accordance with this court’s Local Rules.

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IT IS SO ORDERED.
August 29, 2016
Albany, New York

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