Wool v. Menard
Filing
103
OPINION AND ORDER Adopting 98 Magistrate Judge's Report and Recommendation granting 64 Motion to Dismiss Plaintiff's Complaint Without Prejudice and Granting Leave to Amend. Plaintiff is granted thirty (30) days from the date of this Order to file an Amended Complaint. Failure to file an Amended Complaint in the time period provided shall result in the dismissal of this action with prejudice. Signed by Chief Judge Christina Reiss on 11/28/2016. (pac)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
KIRK WOOL,
Plaintiff,
v.
LISA MENARD, Commissioner of Vermont
Department of Corrections
Defendant.
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21" NOV 28 PH 3: 21
CLERK
Case No.2: 16-cv-120
OPINION AND ORDER
ADOPTING MAGISTRATE JUDGE'S RECOMMENDATION
TO DISMISS PLAINTIFF'S COMPLAINT WITHOUT PREJUDICE
AND GRANTING LEAVE TO AMEND
(Docs. 64 & 98)
On May 9, 2016, Plaintiff Kirk Wool, a self-represented inmate, filed a notice to
remove his "1st Amendment retaliation claim" and other claims against Defendant Lisa
Menard, Commissioner or the Vermont Department of Corrections ("DOC") to this court
(the "Notice"). (Doc. 64 at 1.) The Notice pertains to a complaint Plaintiff filed in
Vermont Superior Court challenging Defendant's alleged false designation of him as a
"high risk" offender. (Doc. 6 at 1) (internal quotation marks omitted). Since that time,
Plaintiff has expressed a desire to proceed both in state court and in this court.
This matter came before the court for a review of the Magistrate Judge's
September 19, 2016 Report and Recommendation ("R & R") (Doc. 98), in which he
recommended that the court treat Plaintiffs Notice as a motion to dismiss his federal
claims against Defendant pursuant to Fed. R. Civ. P. 4l(a)(2). The Magistrate Judge
further recommended that the court grant the motion, dismiss Plaintiffs initial
Complaint, and permit Plaintiff to amend his Complaint to clarify which claims he seeks
to pursue in this court. This will assist the parties in litigating Plaintiffs claims and will
assist the court in adjudicating them. At present, the record is too conflicted to determine
Plaintiffs intent and there do not appear to be any federal claims pending before the
court. Neither party has filed an objection to the R & R, and the time period to do so has
expired.
A district judge must make a de novo determination of those portions of a
magistrate judge's report and recommendation to which an objection is made. Fed. R.
Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1); Cullen v. United States, 194 F.3d 401, 405 (2d
Cir. 1999). The district judge may "accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge." 28 U.S. C. § 636(b)(l);
accord Cullen, 194 F.3d at 405. A district judge, however, is not required to review the
factual or legal conclusions of the magistrate judge as to those portions of a report and
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985).
CONCLUSION
The court hereby ADOPTS the Magistrate Judge's recommendation and
DISMISSES WITHOUT PREJUDICE Plaintiffs initial Complaint (Doc. 6) and
GRANTS Plaintiff thirty (30) days from the date of this Order to file an Amended
Complaint. Any amended filing shall be entitled "Amended Complaint" and shall consist
of numbered paragraphs containing short and plain factual allegations, a short and plain
statement of each legal claim Plaintiff asserts, and a clear and concise statement of the
relief requested. See Fed. R. Civ. P. 8(a) (listing required contents of a pleading that
states a claim for relief).
In the Amended Complaint, Plaintiff must allege all claims and name all
defendants that Plaintiff intends to include, as the Amended Complaint will take the place
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of the original Complaint in all respects. Failure to file an Amended Complaint in the
time period provided shall result in the dismissal of this action with prejudice.
SO ORDERED.
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Dated at Burlington, in the District of Vermont, this
ZX day ofNovember, 2016.
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Christina Reiss, Chief Judge
United States District Court
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