Ingraham et al v. Cumo et al, No. 1:2020cv00147 - Document 8 (N.D.N.Y 2020)
Court Description: DECISION and ORDER. The Court ACCEPTS AND ADOPTS Magistrate Judge Hummel's recommendation in the February 27, 2020 6 Report-Recommendation and Order to dismiss the complaint without prejudice to amendment. It is hereby ORDERED that Plaintiff s' 1 complaint is DISMISSED without prejudice to amendment. It is further ORDERED that Plaintiffs are provided sixty (60) days from the date of this Decision and Order to file an amended complaint. It is further ORDERED that should Plaintiff s decline to file an amended complaint within the time frame set forth herein, the Clerk of the Court may close this action without further order from the Court. Signed by Senior Judge Thomas J. McAvoy on 4/20/2020. (Copy served via regular and certified mail) (dpk)
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Ingraham et al v. Cumo et al Doc. 8 Case 1:20-cv-00147-TJM-CFH Document 8 Filed 04/20/20 Page 1 of 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ BRUCE INGRAHAM; HOLLY INGRAHAM, Plaintiffs, v. 1:20-CV-0147 ANDREW CUMO, JR.,1 et al., Defendants. _________________________________________ THOMAS J. McAVOY, Senior United States District Judge DECISION and ORDER I. INTRODUCTION This pro se action was referred to the Hon. Christian F. Hummel, United States Magistrate Judge, to review Plaintiffs’ in forma pauperis applications and for an initial review of their complaint pursuant to 28 U.S.C. § 1915(e). Magistrate Judge Hummel recommends that because “Plaintiffs’ complaint completely fails to meet the pleading guidelines of Federal Rules of Civil Procedure 8 and 10," and because the factual allegations in the complaint fail to provide the Court with any “means by which to assess whether this Court’s jurisdiction or venue is proper,” Rep.-Rec. & Ord., Dkt. No. 6 at 5, the complaint be dismissed without prejudice to amendment. Id. at 6. Plaintiffs failed to file 1 Plaintiffs identify the first defendant as “Andrew Cumo Jr” who holds the official position of “Govener” [sic] in Albany, NY, Dkt. No. 1 at ¶ 3, which is apparently a misspelling of New York State Governor Andrew Cuomo’s name. Because the complaint is dismissed without prejudice to amendment, there is no need to correct the docket at this time. 1 Dockets.Justia.com Case 1:20-cv-00147-TJM-CFH Document 8 Filed 04/20/20 Page 2 of 3 timely objections but filed an untimely letter that, liberally construed, appears to indicate an intent to file an amended complaint but requests additional time to so because of circumstances in Plaintiffs’ personal lives. See Dkt. No. 7. II. DISCUSSION After examining the record, this Court has determined that the recommendation in the Report-Recommendation and Order to dismiss the complaint without prejudice to amendment is not subject to attack for plain error or manifest injustice. Further, even if the Plaintiffs’ letter is treated as an objection, the Court has completed a de novo review and has determined to adopt Magistrate Judge Hummel’s recommendation for the reasons stated in his report. The Court will add additional time for Plaintiffs to file an amended complaint. III. CONCLUSION Accordingly, the Court ACCEPTS AND ADOPTS Magistrate Judge Hummel’s recommendation in the February 27, 2020 Report-Recommendation and Order (Dkt. No. 6) to dismiss the complaint without prejudice to amendment. It is hereby ORDERED that Plaintiffs’ complaint (Dkt. No. 1) is DISMISSED without prejudice to amendment; and it is further ORDERED that Plaintiffs are provided sixty (60) days from the date of this Decision and Order to file an amended complaint. Plaintiffs are advised that an amended complaint supersedes in all respects the prior pleading. Any amended complaint must be a complete pleading and include all facts and claims that Plaintiffs proceed on, and must attempt to cure the defeciencies in the complaint identified by Magistrate Judge Hummel in 2 Case 1:20-cv-00147-TJM-CFH Document 8 Filed 04/20/20 Page 3 of 3 his Report-Recommendation and Order. Therefore, if Plaintiffs file an amended complaint, they must properly allege in the amended complaint all factual bases for all claims asserted therein, must identify the dates and locations of the underlying acts that they contend provide the bases of their claims, identify a basis for federal jurisdiciton (see 28 U.S.C. §§ 1330 -1369), and the amended complaint must be in compliance with Rules 8 and 10 of the Federal Rules of Civil Procedure. If Plaintiffs file an amended complaint within the time frame set forth herein, the Clerk of the Court is to return the case to Magistrate Judge Hummel for review of the amended complaint; and it is further ORDERED that should Plaintiffs decline to file an amended complaint within the time frame set forth herein, the Clerk of the Court may close this action without further order from the Court. IT IS SO ORDERED. Dated: April 20, 2020 3
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