Woolsey v. Mitzel et al, No. 1:2017cv00033 - Document 31 (N.D.N.Y 2017)
Court Description: DECISION AND ORDER adopting the 24 R & R. Therefore, Pltf's 12 amended complaint is dismissed as frivolous, with leave to replead only with respect to claims that do not directly relate to pltf's attempt to regain custody of her biologi cal daughter. Pltf may file a second amended complaint by 5/10/17. Failure to file a second amended complaint by 5/10/17 will result in judgment being entered for defts. Deft's 30 Motion to dismiss is denied without prejudice as moot. Signed by Senior Judge Thomas J. McAvoy on 4/10/17. (Copy served via regular mail)(sfp, )
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Woolsey v. Mitzel et al Doc. 31 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ JEANETTE WOOLSEY, Plaintiff, Civil Action No. 1:17-CV-0033 (TJM/DEP) v. DESIREE ANN MITZEL and CHARLES MITZEL, Defendants. ________________________________________ THOMAS J. McAVOY, Senior United States District Judge DECISION & ORDER I. INTRODUCTION This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon. David E. Peebles, Chief United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). No objections to Magistrate Judge Peebles’ Report and Recommendation [dkt. # 24] have been filed, and the time to do so has expired. II. DISCUSSION After examining the record, this Court has determined that the Report and Recommendation is not subject to attack for plain error or manifest injustice. III. CONCLUSION Accordingly, the Court ADOPTS the Report and Recommendation [dkt. # 24] for the 1 Dockets.Justia.com reasons stated therein. Therefore, plaintiff's amended complaint [dkt. # 12] is DISMISSED as frivolous, with leave to replead only with respect to claims that do not directly relate to plaintiff's attempt to regain custody of her biological daughter. If plaintiff elects to file a second amended complaint, she must do so within thirty (30) days from the date of this Decision and Order. Plaintiff is advised that an amended complaint supersedes in all respects the prior pleading. Therefore, if plaintiff files a second amended complaint, she must properly allege in the second amended complaint all factual bases for all claims asserted therein, and the second amended complaint must be in compliance with Rules 8 and 10 of the Federal Rules of Civil Procedure as explained by Magistrate Judge Peebles. The failure to file a second amended complaint within this time frame will be deemed an abandonment of any other potential claims arising from this matter, and the Court Clerk’s Office will close this file and enter judgment for defendants. Defendants’ Motion to Dismiss [dkt. # 30], is denied without prejudice as moot. IT IS SO ORDERED. Dated: April 10, 2017 2
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