Amberslie v. Prisoner Transport Service of America, LLC et al

Filing 38

DECISION AND ORDER: ORDERED that the Court ACCEPTS and ADOPTS the Report and Recommendation [Dkt. No. 33 ] for the reasons stated therein. Defendant's motion to dismiss [Dkt. No. 23 ] is GRANTED, and plaintiff's remaining claims in the C omplaint [Dkt. No. 1] against defendant Prisoner Transport Service of America, LLC, are DISMISSED with leave to replead. Further, defendant Prisoner Transport Service of America, LLC's letter motion [Dkt. No. 37 ] is GRANTED. The Clerk of the Court is respectfully directed to change the docket designation for the February 1, 2018 filing [Dkt. No. 35 ] to plaintiff's Amended Complaint. Defendant Prisoner Transport Service of America, LLC is given until March 6, 2018 to respond to or otherwise move to dismiss the Amended Complaint. Signed by Senior Judge Thomas J. McAvoy on 2/22/18. {order served via regular mail on plaintiff}(nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
AKANNI AMBERSLIE,
Plaintiff,

Civil Action No.
9:17-CV-0564 (TJM/DEP)

v.
PRISONER TRANSPORT SERVICE
OF AMERICA, LLC, et al.,
Defendants.
________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
This pro se action was referred to the Hon. David E. Peebles, Chief United States

Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and
Local Rule 72.3(c). Magistrate Judge Peebles recommends that defendant's motion to
dismiss [Dkt. No. 23] be granted, and that plaintiff's remaining claims against defendant
Prisoner Transport Service of America, LLC, be dismissed, with leave to replead. Rep. &
Rec. p. 20. No objections to Magistrate Judge Peebles’ Report and Recommendation have
been filed, and the time to do so has expired. Plaintiff did, however, file a letter indicating
that he intended to replead [Dkt. No. 34], and, on February 1, 2018, filed a document that
appears to be his amended pleading. [Dkt. No. 35]. In response to the February 1, 2018
filing, which was docketed as a “submission in response to Report and Recommendation,”
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defendant Prisoner Transport Service of America, LLC filed a letter motion [Dkt. No. 37]
asking: (1) that the docket designation for the February 1, 2018 filing [Dkt. No. 35] be
changed to plaintiff’s amended complaint, and (2) that defendant be given until March 6,
2018 to respond to or otherwise move to dismiss the amended complaint.
II.

DISCUSSION
After examining the record, this Court has determined that the Report and

Recommendation is not subject to attack for plain error or manifest injustice.
A review of the February 1, 2018 filing [Dkt. No. 35] indicates that the document is
intended to be plaintiff’s amended complaint.
III.

CONCLUSION
Accordingly, the Court ACCEPTS and ADOPTS the Report and Recommendation

[Dkt. No. 33] for the reasons stated therein. Defendant's motion to dismiss [Dkt. No. 23] is
GRANTED, and plaintiff's remaining claims in the Complaint [Dkt. No. 1] against defendant
Prisoner Transport Service of America, LLC, are DISMISSED with leave to replead.
Further, defendant Prisoner Transport Service of America, LLC’s letter motion [Dkt.
No. 37] is GRANTED. The Clerk of the Court is respectfully directed to change the docket
designation for the February 1, 2018 filing [Dkt. No. 35] to plaintiff’s Amended Complaint.
Defendant Prisoner Transport Service of America, LLC is given until March 6, 2018 to
respond to or otherwise move to dismiss the Amended Complaint.
IT IS SO ORDERED.
Dated:February 22, 2018

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