Delaney v. Zaki et al, No. 9:2013cv00648 - Document 42 (N.D.N.Y 2014)
Court Description: DECISION AND ORDER: The recommendations of the Magistrate Judge, the Report-Recommendation (Dkt. No. 41 ) is accepted in whole. See 28 U.S.C. § 636(b)(1). ORDERED, that Defendants' 27 Motion to Dismiss for failure to state a claim pursu ant to Federal Rule of Civil Procedure 12(b)(6) is GRANTED and the complaint is DISMISSED. ORDERED, that Plaintiff is granted leave to file an amended complaint within thirty (30) days of the date of this Decision and Order as described herein. Pla intiff is cautioned that, if he fails to file an amended complaint that states a claim upon which relief can be granted by October 30, 2014, judgment will be entered and this case will be closed without further order. Signed by Judge David N. Hurd on 9/30/14. (served on plaintiff by regular mail) (alh, )
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Delaney v. Zaki et al Doc. 42 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------CLARENCE DELANEY, JR., Plaintiff, No. 9:13-CV-0648 (DNH/TWD) -vDR. ZAKI; DR. S. RAMINENI; M. CZERWINSKI; BRANDON J. SMITH; and DR. CARL KOENIGSMANN, Defendants. -------------------------------APPEARANCES: OF COUNSEL: CLARENCE DELANEY, JR. Plaintiff pro se 12-A-4898 Fishkill Correctional Facility P.O. Box 1245 Beacon, NY 12508 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Attorney for Defendants The Capitol Albany, NY 12224 RACHEL M. KISH, ESQ. Ass't Attorney General 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 September 2, 2014, the Honorable Thérèse Wiley Dancks, United States Magistrate Judge, advised by Report-Recommendation that defendants' motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) be granted Dockets.Justia.com and that plaintiff be granted leave to amend. No objections to the Report-Recommendation were 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. Defendants' motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is GRANTED and the complaint is DISMISSED; 2. Plaintiff is granted leave to file an amended complaint within thirty (30) days of the date of this Decision and Order to address the deficiencies identified in the ReportRecommendation. If plaintiff submits an amended complaint, he is encouraged to describe the acts of misconduct alleged therein and identify each individual who participated in the misconduct. Plaintiff is further advised that any amended complaint will completely replace the prior complaint in this action. Therefore, he should set forth all of his claims against each of the defendants in a manner that complies with the requirements of the Federal Rules of Civil Procedure and the Report-Recommendation. No portion of the prior complaint shall be incorporated into the amended complaint by reference. Plaintiff is cautioned that, if he fails to file an amended complaint that states a claim upon which relief can be granted by October 30, 2014, judgment will be entered and this case will be closed without further order; and -2- 3. The Clerk is directed to serve a copy of this Decision and Order upon plaintiff in accordance with the Local Rules. IT IS SO ORDERED. Dated: September 30, 2014 Utica, New York. -3-
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