McRae v. Fischer et al

Filing 8

ORDER adopting 7 Report and Recommendations; granting in part and denying in part 3 Motion to Dismiss. Plaintiff is granted leave to file an amended complaint within 30 days of the date of this Order. If plaintiff does not file an amended complaint within the 30 days, the Clerk is directed to close this case. Signed by Judge Brenda K. Sannes on 8/16/17. (Copy served on plaintiff via regular mail)(rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________
TROY MCRAE,
Plaintiff,
v.

9:17-CV-0146 (BKS/CFH)

BRIAN FISCHER, Commissioner, et al.,
Defendants.
________________________________________________
Appearances:
Troy McRae
A-046-109-695
Buffalo Federal Detention Facility
4250 Federal Drive
Batavia, NY 14020
Plaintiff, pro se
Aimee M. Paquette, Esq.
Hon. Eric T. Schneiderman
Office of New York State Attorney General
615 Erie Boulevard West, Suite 102
Syracuse, NY 13204
Attorney for Defendants
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Troy McRae commenced this pro se action alleging violations of his
constitutional rights arising out of his incarceration at Cayuga Correctional Facility. Dkt. No. 2.
On February 17, 2017, Defendants filed a motion to dismiss under Fed. R. Civ. P. 12(b)(5) and
12(b)(6). Dkt. No. 3. Plaintiff filed a letter stating that he would not file a response to the
motion. Dkt. No. 5. Defendants filed a reply on March 21, 2017. Dkt. No. 6. This matter was
referred to United States Magistrate Judge Christian F. Hummel who, on July 14, 2017, issued a

Report-Recommendation and Order. Dkt. No. 7. Magistrate Judge Hummel recommended that
Defendants’ motion to dismiss under Fed. R. Civ. P. 12(b)(5) be denied; that Defendants’ motion
to dismiss under Fed. R. Civ. P. 12(b)(6) be granted; and that Plaintiff’s complaint be dismissed
in its entirety, without prejudice. Dkt. No. 7, p. 23. 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. 7, pp. 23-24. No objections to the Report-Recommendation
have been filed.
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.
Further, in recognition of Plaintiff’s status as a pro se litigant and because it seems
possible that Plaintiff may be able to assert cognizable claims with better pleading, leave to file
an amended complaint 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,
including the dates, times, and places of the alleged underlying acts, and each individual who
committed each alleged wrongful act. In addition, the revised pleading should allege facts
demonstrating the specific involvement of any of the named defendants in the constitutional
deprivations alleged in sufficient detail to establish that they were 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
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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)). If Plaintiff fails to file an amended complaint within
thirty days, this case will be closed.
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 7) is ADOPTED in its entirety;
and it is further
ORDERED that Defendants’ motion to dismiss under Fed. R. Civ. P. 12(b)(5) (Dkt. No.
3) is DENIED; and it is further
ORDERED that Defendants’ motion to dismiss under Fed. R. Civ. P. 12(b)(6) (Dkt. No.
3) is GRANTED, and Plaintiff’s complaint is DISMISSED in its entirety, without prejudice;
and it is further
ORDERED that Plaintiff is granted leave to file an amended complaint within thirty (30)
days of the date of this Order; and it is further
ORDERED that if Plaintiff fails to file an amended complaint within thirty (30) days of
the date of this Order, the Clerk is directed to close this case; 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: August 16, 2017

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