Skates v. Shusda et al, No. 9:2014cv01092 - Document 37 (N.D.N.Y 2016)
Court Description: DECISION AND ORDER: ORDERED that the Court ADOPTS the Report and Recommendation [dkt. # 36 ] for the reasons stated therein. The defendants' motion to dismiss [dkt. # 34 ] plaintiff's amended complaint [dkt. # 33) is GRANTED in part, a nd plaintiff's equal protection and retaliation claims are DISMISSED with leave to file a second amended complaint within thirty (30) days from the date of this Decision and Order, but that the remaining portion of the motion, addressing plainti ff's First Amendment free exercise cause of action, is DENIED. Plaintiff is advised that an amended complaint supersedes in all respects the prior pleading. Therefore, if Plaintiff files a second amended complaint, he must properly allege in the second amended complaint all factual bases for all claims asserted therein. The failure to file a second amended complaint within this time frame will be deemed as an abandonment of the dismissed claims, and a "with prejudice" dismissal will be entered on the Court's docket on the dismissed claims without further order by the Court. Signed by Senior Judge Thomas J. McAvoy on 7/13/16. {order served via regular mail on plaintiff}(nas)
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Skates v. Shusda et al Doc. 37 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ ELIJAH SKATES, Plaintiff, Civil Action No. 9:14-CV-1092 (TJM/DEP) v. JARROD SHUSDA, et al., 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. # 36] 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. # 36] for the 1 Dockets.Justia.com reasons stated therein. The defendants’ motion to dismiss [dkt. # 34] plaintiff's amended complaint [dkt. # 33) is GRANTED in part, and plaintiff’s equal protection and retaliation claims are DISMISSED with leave to file a second amended complaint within thirty (30) days from the date of this Decision and Order, but that the remaining portion of the motion, addressing plaintiff's First Amendment free exercise cause of action, is DENIED. Plaintiff is advised that an amended complaint supersedes in all respects the prior pleading. Therefore, if Plaintiff files a second amended complaint, he must properly allege in the second amended complaint all factual bases for all claims asserted therein. The failure to file a second amended complaint within this time frame will be deemed as an abandonment of the dismissed claims, and a “with prejudice” dismissal will be entered on the Court’s docket on the dism issed claims without further order by the Court. IT IS SO ORDERED. Dated:July 12, 2016 2
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