Lozada v. Warden Downstate Correctional Facility, No. 1:2010cv08425 - Document 39 (S.D.N.Y. 2012)
Court Description: OPINION re: 30 MOTION to Dismiss Amended Complaint. filed by Warden Downstate Correctional Facility. For the reasons set forth above, Defendant's motion to dismiss is granted with prejudice. It is SO ORDERED.(Signed by Judge Robert W. Sweet on 11/20/2012) (ama) Modified on 11/26/2012 (ama).
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LUIS LOZADA, Plaintiff, 10 Civ. 8425 (RWS) - against OPINION WARDEN DOWNSTATE CORRECTIONAL FACILITY, Defendant. ----------------------------------------x A P PEA RAN C E S: Plaintiff Pro Se LUIS LOZADA 11-A-5830 Downstate Correctional Facility Box F Red Schoolhouse Road Fishkill, NY 12524-0445 Attorney for Defendant OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL 120 Broadway, 24th Floor New York, NY 10271 By: Donald Nowve, Esq. Sweet, D.J. On June 26, 2012, an opinion was issued granting the motion of defendant Warden, Downstate Correctional Facility ("Defendant" or "Warden") to dismiss the complaint of plaintiff Luis Lozada ("Plaintiff" or "Lozada") for failure to state a claim upon which relief can be granted. _ _ _ _ _ _~_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ L (RWS) , 2012 WL 2402069 (June 26, 2012) See Lozada v. , No. 10 Civ. 8425 ("Lozada II"). Lozada II granted Plaintiff 20 days to replead, and after Plaintiff requested an extension, he was granted an additional 45 days to replead pursuant to an order dated July 25, 2012. On August 22, 2012, Plaintiff filed a document that he labeled "Motion to Replead & Evidence," which has been liberally construed to be an amended complaint ("Amended Complaint"). See v. New York, No. 12 Civ. 0732 2012 WL 5465026, at *6 (S.D.N.Y. Jan. 3, 2012) v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (RWS) , (citing Graham ("As the Petitioner is pro se, his submissions will therefore be liberally construed and read to raise they suggest."). dismiss Defendant filed strongest argument instant motion to amended complaint on September 28, 2012, and the motion was marked fully submitted on October 31, 2012. 1 The submissions of pro se litigants are held to "less stringent standards than formal pleadings drafted by lawyers," Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980), and courts "apply[J a more flexible standard to evaluate their sufficiency tha[nJ when reviewing a complaint submitted by counsel," Lerman v. Bd. of Elections in City of N.Y., 232 F.3d 135, 139-40 (2d Cir. 2000). However, "pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law." Bureau of Prisons, 470 F.3d 471, 477 Triestman v. Fed. (2d Cir. 2006) (internal citation and quotation marks omitted) . Plaintiff's Amended Complaint contains no additional allegations to those contained in his initial complaint, but rather simply recapitulates the allegation that aintiff was not released from prison until June I, 2012, even though his term of incarceration ended on May 25, 2010. It has already been established that this allegation is insufficient to state a claim against Defendant. See Lozada II. Accordingly, Plaintiff's Amended Complaint fails to state a claim against Defendant, and is therefore dismissed. When a motion to dismiss is granted, "[iJt is the usual practice . to allow leave to replead." French, 232 Fed. Appx. 17, 19 (2d Cir. 2007) 2 Schindler v. (quoting Cortec Indus. 1 Inc. v. Sum Holding P'P' 1991)). However 1 I 949 F.2d 42, 48 (2d Cir. the absence of new allegations in Lozada/s Amended Complaint makes plain that another repleading would be an exercise in futility. Accordingly, leave to replead is denied, and the Amended Complaint is dismissed with prejudice. See Rivera v. Salomon Smith BarneYI No. 01 Civ. 9282 (RWS) 2003 WL 222249 v. Vitolo l 1 at *3 (S.D.N.Y. Jan. 30 435 F.2d 838 1 1 2003) 1 (citing Mooney 839 (2d Cir. 1970)). Conclusion For the reasons set forth above, Defendant/s motion to dismiss is granted with prejudice. It is so ordered. New York, NY November )...6 I 2012 3
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