Lumumba v. Mack et al

Filing 18

ORDER ADOPTING 17 REPORT AND RECOMMENDATION ; granting in part and denying in part 6 Motion to Dismiss for Failure to State a Claim; denying as moot 13 Motion to Dismiss for Failure to State a Claim. Second Amended Complaint shall be filed on or before 11/29/2013. This matter is returned to Magistrate Judge John M. Conroy for further proceedings. Signed by District Judge J. Garvan Murtha on 11/5/2013. (wjf)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

YETHA IDRISS LUMUMBA,

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Plaintiff,
v.
HAYWOOD MACK,
MATTHEW ENGELS,
CHAD M. PRESSEY,
Defendants.

File No. 1:13-cv-158-jgm-jmc

ORDER
The Magistrate Judge's Report and Recommendation was filed September 23,
2013. (Doc. 17.) After de novo review and absent objection, the Report and
Recommendation is AFFIRMED, APPROVED and ADOPTED. See 28 U.S.C. §
636(b)(1).
Defendants Engels and Pressey’s Motion to Dismiss (Doc. 13) is DENIED as
moot, and because they are not identified as parties in the amended complaint (Doc.
15), they shall be terminated as Defendants.
Defendant Mack’s Motion to Dismiss (Doc. 6) is GRANTED, insofar as the
motion seeks dismissal of Plaintiff’s § 1983 and Title 18 claims. The motion is DENIED
with respect to Plaintiff’s state law claims, and he shall be afforded an opportunity to
amend his complaint. If he chooses to file an amended pleading, he shall do so on or
before November 29, 2013. The pleading must be entitled “Second Amended
Complaint” and include a jurisdictional statement. The Second Amended Complaint will
replace all prior complaints, thereby invalidating the original Complaint (Doc. 5) and the

subsequent “Verified Complaint” (Doc. 15). Failure to file a timely Second Amended
Complaint, or to allege facts establishing diversity jurisdiction, may result in dismissal of
this case without prejudice.
This matter is returned to Magistrate Judge John M. Conroy for further
proceedings.
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 5th day of November, 2013.

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