Russo v. State of Vermont, et al

Filing 47

ORDER AFFIRMING, APPROVING and ADOPTING 39 Magistrate Judge's REPORT AND RECOMMENDATION. Defendants' 10 , 11 , 13 and 15 are GRANTED. Plaintiff's 38 Motion for extension of time to file response DENIED. The Court sua sponte d ismisses defendant Windham County as no mention of this defendant was made in the 4 Complaint. Any appeal taken in forma pauperis from this Order would not be taken in good faith because such an appeal would be frivolous. Signed by District Judge J. Garvan Murtha on 9/29/2011. (kak)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
VITO J. RUSSO,
Plaintiff,

:
:
:
v.
:
:
STATE OF VERMONT,
:
VERMONT ATTORNEY GENERAL,
:
TRACY SHRIVER, ESQ.,
:
DAN DAVIS, ESQ.,
:
JUDGE KAREN CARROLL,
:
BRATTLEBORO POLICE DEPARTMENT, :
WINDHAM COUNTY, TOWN OF
:
BRATTLEBORO, DEFENDER GENERAL, :
PUBLIC DEFENDERS,
:
Defendants.
:

File No. 1:10-cv-296-jgm

ORDER
The Magistrate Judge's Report and Recommendation was filed July 29, 2011.
(Doc. 39.) After de novo review and over objection, the Report and Recommendation is
AFFIRMED, APPROVED and ADOPTED. See 28 U.S.C. § 636(b)(1).
Defendants’ Motions to Dismiss (Docs. 10, 11, 13 and 15) are GRANTED.
Because Plaintiff’s claims are substantively flawed, an amendment of the complaint
would be futile. Leave to amend the Complaint, therefore, is DENIED, as is Plaintiff’s
motion for extension of time (Doc. 38).
The Court notes Plaintiff has named Windham County as a defendant; however
no discernible claims against Windham County are alleged in the Complaint. Where a
complainant names a defendant in the caption but the complaint contains no
substantive allegation against that defendant, dismissal of the complaint is appropriate.
See Garcia v. Watts, No. 08-CV-778, 2009 WL 2777085, at *13 (S.D.N.Y. Sept. 1,

2009) (collecting cases). Accordingly, because Russo’s complaint contains no mention
of Defendant Windham County other than in the caption, the Court sua sponte
dismisses the complaint as against Windham County.
It is further certified that any appeal taken in forma pauperis from this Order
would not be taken in good faith because such an appeal would be frivolous. See 28
U.S.C. § 1915(a)(3).
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 29th day of September, 2011.

/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge