Sherman v. Holecek et al, No. 3:2017cv00702 - Document 8 (N.D.N.Y 2017)

Court Description: DECISION AND ORDER adopting Report and Recommendations re 6 Report and Recommendations: Ordered that Plaintiff's complaint is Dismissed without prejudice and the Clerk is directed to file judgment accordingly and close the case. Signed by U.S. District Judge David N. Hurd on 09/26/2017. (Copy served on pro se plaintiff via regular mail on 9/26/2017.)(hmr)

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Sherman v. Holecek et al Doc. 8 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------EDWARD C. SHERMAN, Plaintiff, -v- 3:17-CV-702 (DNH/DEP) MATTHEW R. HOLECEK, Trooper; and JOHN CORNELL, Trooper, Defendants. -------------------------------APPEARANCES: EDWARD C. SHERMAN Plaintiff pro se 13-B-3651 Sing Sing Correctional Facility 354 Hunter Street Ossining, NY 10562 DAVID N. HURD United States District Judge DECISION and ORDER Pro se plaintiff Edward C. Sherman brought this civil rights action pursuant to 42 U.S.C. § 1983 against two New York State Troopers. On August 31, 2017, the Honorable David E. Peebles, United States Magistrate Judge, advised by Report-Recommendation that plaintiff's complaint be dismissed without prejudice because it is duplicative of plaintiff's pending prior suit (3:16-CV-1342 BKS/DEP, filed November 9, 2016). In light of that recommendation, Magistrate Judge Peebles advised that plaintiff's motion to proceed without prepayment of feeds be denied as moot. In a letter response to the Report- Recommendation, plaintiff explained that he misunderstood the directions provided in his other lawsuit, and he did not intend to initiate a new civil action. He asked that he be permitted to proceed with his original action without including the County of Delaware as a defendant. Plaintiff is advised that his other lawsuit remains pending, and the County of Delaware was dismissed as a defendant in that case in accordance with the July 11, 2017 Order of the Honorable Brenda K. Sannes, United States District Judg e. To be clear, the instant action will be dismissed and plaintiff may proceed in his initial action. 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. Plaintiff's complaint is DISMISSED without prejudice; and 2. The Clerk is directed to file judgment accordingly and close the file. IT IS SO ORDERED. Dated: September 26, 2017 Utica, New York. 2

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