Barber v. City of Buffalo, et al

Filing 21

DECISION AND ORDER adopting Magistrate Judge H. Kenneth Schroeder, Jr.'s Report and Recommendation 13 . Defendants' motion to dismiss 7 plaintiff's Complaint is granted without prejudice. Plaintiff may amend the Complaint, as outl ined in the Report and Recommendation, no later than February 17, 2017. In the event the plaintiff does not file an amended Complaint, the Clerk shall enter judgment. SO ORDERED. Signed by Hon. Richard J. Arcara on 1/21/17. (LAS)-CLERK TO FOLLOW UP-

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK JEROME BARBER, Plaintiff, DECISION AND ORDER 14-CV-1075-A v. CITY OF BUFFALO, CITY OF BUFFALO POLICE DEPARTMENT, and CAPTAIN MARK ANTONIO, Defendants. This action was referred to Magistrate Judge H. Kenneth Schroeder, Jr., pursuant to 28 U.S.C. § 636(b)(1) for the conduct of pretrial proceedings. On May 5, 2016, Magistrate Judge Schroeder filed a Report and Recommendation (Dkt. No. 13) recommending that defendants’ motion to dismiss the Complaint (Dkt. No. 7) be granted. On July 13, 2016, pro se plaintiff Jerome Barber filed objections to the Report and Recommendation. Dkt. No. 17. Defendants filed a response on August 8, 2016 (Dkt. No. 19) and plaintiff filed a reply on September 2, 2016 Dkt. No. 20. The matter was deemed submitted. Pursuant to 28 U.S.C. §636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon de novo review, and after reviewing the submissions from the parties, the Court hereby adopts Magistrate Judge Schroeder’s findings and conclusions. Accordingly, for the reasons set forth in Magistrate Judge Schroeder’s Report and Recommendation (Dkt. No. 13), defendants’ motion to dismiss plaintiff’s Complaint is granted without prejudice. Plaintiff is granted leave to amend the Complaint within the confines outlined in the Report and Recommendation. If Plaintiff Barber chooses to amend his Complaint, he must do so on or before February 17, 2017. In the event Plaintiff fails timely to file an amendment, the Clerk shall enter Judgment without further order of the Court. IT IS SO ORDERED. ____Richard J. Arcara____________ HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT COURT Dated: January 21, 2017 2

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