Wool v. Menard, No. 2:2016cv00120 - Document 103 (D. Vt. 2016)

Court Description: OPINION AND ORDER Adopting 98 Magistrate Judge's Report and Recommendation granting 64 Motion to Dismiss Plaintiff's Complaint Without Prejudice and Granting Leave to Amend. Plaintiff is granted thirty (30) days from the date of this Order to file an Amended Complaint. Failure to file an Amended Complaint in the time period provided shall result in the dismissal of this action with prejudice. Signed by Chief Judge Christina Reiss on 11/28/2016. (pac)

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Wool v. Menard Doc. 103 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT KIRK WOOL, Plaintiff, v. LISA MENARD, Commissioner of Vermont Department of Corrections Defendant. ) ) ) ) ) ) ) ) ) ) 21" NOV 28 PH 3: 21 CLERK Case No.2: 16-cv-120 OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S RECOMMENDATION TO DISMISS PLAINTIFF'S COMPLAINT WITHOUT PREJUDICE AND GRANTING LEAVE TO AMEND (Docs. 64 & 98) On May 9, 2016, Plaintiff Kirk Wool, a self-represented inmate, filed a notice to remove his "1st Amendment retaliation claim" and other claims against Defendant Lisa Menard, Commissioner or the Vermont Department of Corrections ("DOC") to this court (the "Notice"). (Doc. 64 at 1.) The Notice pertains to a complaint Plaintiff filed in Vermont Superior Court challenging Defendant's alleged false designation of him as a "high risk" offender. (Doc. 6 at 1) (internal quotation marks omitted). Since that time, Plaintiff has expressed a desire to proceed both in state court and in this court. This matter came before the court for a review of the Magistrate Judge's September 19, 2016 Report and Recommendation ("R & R") (Doc. 98), in which he recommended that the court treat Plaintiffs Notice as a motion to dismiss his federal claims against Defendant pursuant to Fed. R. Civ. P. 4l(a)(2). The Magistrate Judge Dockets.Justia.com further recommended that the court grant the motion, dismiss Plaintiffs initial Complaint, and permit Plaintiff to amend his Complaint to clarify which claims he seeks to pursue in this court. This will assist the parties in litigating Plaintiffs claims and will assist the court in adjudicating them. At present, the record is too conflicted to determine Plaintiffs intent and there do not appear to be any federal claims pending before the court. Neither party has filed an objection to the R & R, and the time period to do so has expired. A district judge must make a de novo determination of those portions of a magistrate judge's report and recommendation to which an objection is made. Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1); Cullen v. United States, 194 F.3d 401, 405 (2d Cir. 1999). The district judge may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S. C. § 636(b)(l); accord Cullen, 194 F.3d at 405. A district judge, however, is not required to review the factual or legal conclusions of the magistrate judge as to those portions of a report and recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). CONCLUSION The court hereby ADOPTS the Magistrate Judge's recommendation and DISMISSES WITHOUT PREJUDICE Plaintiffs initial Complaint (Doc. 6) and GRANTS Plaintiff thirty (30) days from the date of this Order to file an Amended Complaint. Any amended filing shall be entitled "Amended Complaint" and shall consist of numbered paragraphs containing short and plain factual allegations, a short and plain statement of each legal claim Plaintiff asserts, and a clear and concise statement of the relief requested. See Fed. R. Civ. P. 8(a) (listing required contents of a pleading that states a claim for relief). In the Amended Complaint, Plaintiff must allege all claims and name all defendants that Plaintiff intends to include, as the Amended Complaint will take the place 2 of the original Complaint in all respects. Failure to file an Amended Complaint in the time period provided shall result in the dismissal of this action with prejudice. SO ORDERED. '}..... Dated at Burlington, in the District of Vermont, this ZX day ofNovember, 2016. ~== Christina Reiss, Chief Judge United States District Court 3

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