Bulris v. Kudrle, No. 1:2010cv00922 - Document 20 (N.D.N.Y 2012)
Court Description: DECISION AND ORDER adopting 10 Report and Recommendations; dismissing Pltf's 1 Complaint and 13 Amended Complaint in their entirety. Should Pltf desire to bring a habeas corpus petition, she may do so against the proper respondent and after exhaustion of state remedies. Signed by Senior Judge Thomas J. McAvoy on 2/8/12. [Served by certified mail.] (sfp, )
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ DONNA BULRIS, Plaintiff, -v.- 1:10-CV-922 LARRY KUDRLE, Defendant. _________________________________________ THOMAS J. McAVOY, Senior United States District Judge DECISION & ORDER I. INTRODUCTION The Clerk sent to the Hon. Andrew T. Baxter, United States Magistrate Judge, a complaint in this action together with an application to proceed in forma pauperis filed by Plaintiff, Donna Bulris. (Dkt. Nos. 1, 2). After review of the complaint, Magistrate Judge Baxter recommended that the complaint be dismissed in its entirety with prejudice pursuant to 28 U.S.C. 1915(e)(2)(B)(i)-(ii). Dkt. # 10. Plaintiff responded by filing an identical document as both objections to the recommendation and as an amended complaint. Just as Plaintiff did in the original complaint, she complains in the Amended Complaint [dkt. # 13] of actions taken in the state Family Court during which Defendant Kudrle served as Law Guardian for the subject children. As explained by Magistrate Judge Baxter, Defendant Kudrle s actions in his role as a private attorney do not give rise to a federal civil rights claim. Further, as also explained by Magistrate Judge Baxter, 1 Plaintiff may not challenge the custody determinations of the state Family Court absent the commencement of a federal habeas corpus petition which requires prior exhaustion of all available state remedies and the naming as a respondent the state officer who has custody of the Petitioner. Petitioner has neither plead exhaustion of state remedies nor named as a respondent the state officer who has custody of the Petitioner. II. CONCLUSION Having reviewed the Order and Report-Recommendation [dkt. # 10], and having reviewed Plaintiff s Amended Complaint [dkt. # 13], the Court ADOPTS the recommendations made by Magistrate Judge Baxter in the Order and ReportRecommendation in their entirety. For the reasons stated in the Order and ReportRecommendation, the Complaint [dkt. # 1] and the Amended Complaint [dkt. # 13] are DISMISSED IN THEIR ENTIRETY WITH PREJUDICE pursuant to 28 U.S.C. 1915(e)(2)(B)(i)-(ii). Should Plaintiff desire to bring a habeas corpus petition, she may do so against the proper respondent and after exhaustion of state remedies. IT IS SO ORDERED DATED:February 8, 2012 2
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