Bennett v. State of New York Department of Correction et al

Filing 80

ORDER adopting 76 Report and Recommendations. ORDERED that Defendant Annucci's motion for judgment on the pleadings (Dkt. No. 55 ) is GRANTED. ORDERED that to the extent Plaintiff seeks to file an amended complaint as to Defendant Annucci (Dkt. No. 77 ), his motion is GRANTED and Plaintiff is granted leave to file an amended complaint as to Defendant Annucci within thirty (30) days of the date of this Order. Signed by Judge Brenda K. Sannes on 12/6/17. (Copy served on plaintiff via regular mail)(rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________
DONALD MACK BENNETT,
Plaintiff,
v.

9:16-CV-0653 (BKS/CFH)

CORRECTION OFFICER C. COLUMBE, et al.,
Defendants.
________________________________________________
Appearances:
Donald Mack Bennett
11-A-2997
Bare Hill Correctional Facility
Caller Box 20
Malone, NY 12953
Plaintiff, pro se
Katie E. Valder, Esq.
Hon. Eric T. Schneiderman
Office of New York State Attorney General
The Capitol
Albany, NY 12224
Attorney for Defendants
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Donald Mack Bennett, a New York State inmate, commenced this civil rights
action asserting claims under 42 U.S.C. § 1983 arising out of his incarceration at Clinton
Correctional Facility. Dkt. No. 19. On May 31, 2017, Defendant Annucci filed a motion for
judgment on the pleadings under Fed. R. Civ. P. 12(c). Dkt. No. 55. Plaintiff filed a response on
June 8, 2017. Dkt. No. 57. Defendant Annucci filed a reply on June 9, 2017. Dkt. No. 60. This
matter was referred to United States Magistrate Judge Christian F. Hummel who, on October 17,

2017, issued a Report-Recommendation and Order recommending that Defendant Annucci’s
motion be granted. Magistrate Judge Hummel explained that any official capacity claims against
Defendant Annucci for monetary damages are barred by the Eleventh Amendment and that as the
Complaint fails to sufficiently allege that Defendant Annucci was personally involved in
Plaintiff’s constitutional deprivations, the individual capacity claims must be dismissed as well.
Dkt. No. 76. Magistrate Judge Hummel advised the parties that under 28 U.S.C. § 636(b)(1),
they 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. Dkt. No. 76, pp. 9-10.
On November 1, 2017, Plaintiff filed a motion seeking leave to amend the complaint.
Dkt. No. 77. Plaintiff did not specify on what ground he wishes to amend the Complaint and has
not submitted a proposed amended complaint. Moreover, even viewed liberally, nothing in
Plaintiff’s filing can be construed as an objection to the Report-Recommendation.
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 Report-Recommendation is adopted in its entirety.
In recognition of Plaintiff’s status as a pro se litigant, in view of his request to amend,
and because it seems possible that Plaintiff may be able to assert cognizable claims with better
pleading, leave to file an amended complaint as to Defendant Annucci, within thirty (30) days of
the date of this Order, is granted. In any amended complaint, Plaintiff must clearly set forth the
facts that give rise to the claims against Defendant Annucci, including the dates, times, and
places of the alleged underlying acts. In addition, the revised pleading should allege facts

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demonstrating Defendant Annucci’s specific involvement in the constitutional deprivations and
with sufficient detail to establish that he was tangibly connected to those deprivations. Bass v.
Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Any such amended complaint will replace the
existing complaint, and must be a wholly integrated and complete pleading that does not rely
upon or incorporate by reference any pleading or document previously filed with the court. See
Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that
an amended complaint ordinarily supersedes the original, and renders it of no legal effect.”
(quotation marks omitted)).
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 76) is ADOPTED in its
entirety; and it is further
ORDERED that Defendant Annucci’s motion for judgment on the pleadings (Dkt. No.
55) is GRANTED; and it is further
ORDERED that to the extent Plaintiff seeks to file an amended complaint as to
Defendant Annucci (Dkt. No. 77), his motion is GRANTED; and it is further
ORDERED that Plaintiff is granted leave to file an amended complaint as to Defendant
Annucci within thirty (30) days of the date of this Order; 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 6, 2017

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