Delaney v. City of Albany et al, No. 1:2018cv01193 - Document 24 (N.D.N.Y 2019)
Court Description: DECISION AND ORDER adopting 22 Report and Recommendations. To the extent pltf attempts to set forth a conspiracy claim, that claim is dismissed without prejudice and with opportunity to amend. Insofar as pltf's second amended complaint may be read as attempting to set forth Fourth, Fifth, and Fourteenth Amendment claims, such claims are dismissed with prejudice. Pltf may file a third amended complaint by 8/30/19. If pltf fails to file the third amended complaint by 8/30/19, the Clerk shall return the case to Magistrate Judge Hummel for service of the second amended complaint with the unamended claims deemed stricken. Signed by Judge David N. Hurd on 7/31/19. (Copy served via regular mail)(sfp, )
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Delaney v. City of Albany et al Doc. 24 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------CLARENCE DELANEY, JR., Plaintiff, -v- 1:18-CV-1193 (DNH/CFH) CITY OF ALBANY; POLICE OFFICER BRACE, Detective for the City of Albany/CIU; POLICE OFFICER DIGIUSEPPE, Detective for the City of Albany/CIU; POLICE OFFICER JOHN DOE 1, Police Officer for City of Albany; and POLICE OFFICER JOHN DOE 2,3,4, Police Officers for the City of Albany, Defendants. -------------------------------APPEARANCES: CLARENCE DELANEY, JR. Plaintiff pro se 17-A-0236 Fishkill Correctional Facility P.O. Box 1245 Beacon, NY 12508 DAVID N. HURD United States District Judge DECISION and ORDER Pro se plaintiff Clarence Delaney Jr. brought this civil rights action pursuant to 42 U.S.C. § 1983. On June 20, 2019, Magistrate Judge Hummel advised by ReportRecommendation that some of plaintiff's claims be dismissed with prejudice and some without prejudice, and that the remaining claims be permitted to proceed. Magistrate Judge Dockets.Justia.com Hummel recommended providing plaintiff an opportunity to file a third amended complaint to attempt to cure the deficiencies noted in some of his claims. No objections to the ReportRecommendation have been filed. Based upon a careful review of the entire file and the recommendations of the Magistrate Judge, the Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1). Therefore, it is ORDERED that 1. To the extent plaintiff attempts to set forth a conspiracy claim, that claim is DISMISSED WITHOUT PREJUDICE and with opportunity to amend to demonstrate an agreement between defendants, and how defendants acted in concert to allegedly falsely arrest him; 2. Insofar as plaintiff's second amended complaint may be read as attempting to set forth Fourth, Fifth, and Fourteenth Amendment claims for improper seizure of his property or a First Amendment claim for retaliatory arrest, such claims are DISMISSED WITH PREJUDICE; 3. Plaintiff is provided thirty (30) days from the date of this Decision and Order to file a third amended complaint limited to claims not otherwise dismissed with prejudice; 4. If plaintiff fails to file a third amended complaint within thirty (30) days from the date of this Decision and Order, the Clerk shall return the case to Magistrate Judge Hummel for service of the second amended complaint with the unamended claims deemed stricken; and 5. If plaintiff files a third amended complaint within thirty (30) days from the date of -2- this Decision and Order, the Clerk shall return the case to Magistrate Judge Hummel for review of the third amended complaint. IT IS SO ORDERED. Dated: July 31, 2019 Utica, New York. -3-
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