Porter v. Nasci

• Court: District Court, N.D. New York
• Decided: June 25, 2024
• Docket: 5:24-cv-00033
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________________ JOHN A. PORTER, III Plaintiff, 5:24-CV-0033 v. (GTS/TWD) SUSAN HAMLIN NASCI, Defendant. ________________________________________________ APPEARANCES: JOHN A. PORTER, III Plaintiff, Pro Se 175 Parkside Ave Syracuse, New York 13207

GLENN T. SUDDABY, United States District Judge DECISION and ORDER Currently before the Court, in this pro se civil rights action filed by John A. Porter, III (“Plaintiff”) against Susan Hamlin Nasci, Support Magistrate employed by the Onondaga County Family Court (“Defendant”), is United States Magistrate Judge Thérèse Wiley Dancks’ Report- Recommendation recommending that Plaintiff’s Complaint be sua sponte dismissed with leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B), and Plaintiff’s Objection to the Report- Recommendation and Amended Complaint. (Dkt. Nos. 4, 5.) After carefully reviewing the relevant papers herein, including Magistrate Judge Dancks’ thorough Report-Recommendation, the Court can find no error in the Report-Recommendation, clear or otherwise: Magistrate Judge Dancks employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. (See generally Dkt. No. 4.) As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons set forth therein. To those reasons, the Court adds only two points. First, even when construed liberally, Plaintiff’s “Objection” fails to contain a specific challenge to a finding or conclusion contained in the Report-Recommendation. (See generally

Dkt. No. 5.) As a result, the “challenged” portions of the Report-Recommendation are entitled to only a clear-error review,1 which they easily survive. In the alternative, the Court finds that those portions of the Report-Recommendation survive a de novo review. Second, rather than file a specific challenge to the Report-Recommendation, Plaintiff has filed an Amended Complaint. (Dkt. No. 5.) This haste to litigate has complicated matters because, even assuming Plaintiff had an absolute right to file such an Amended Complaint under Fed. R. Civ. P. 15(a)(1) despite that he had not yet served his Complaint,2 an amended complaint

1 When no specific challenge is made to a magistrate judge's report-recommendation, the Court subjects that report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999). When performing such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s] report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted). 2 Rule 15(a)(1)(A) of the Federal Rules of Civil Procedure provides that “[a] party may amend its pleading once as a matter of course within . . . 21 days after serving it . . . .” Fed. R. Civ. P. 15(a)(1)(A) (emphasis added). Here, Plaintiff never served his Complaint; thus, he was arguably not yet within the 21-day window in which he could properly file an Amended Complaint as a matter of course. Compare Morris v. New York State Gaming Comm’n, 18-CV- 0384, 2019 WL 2423716, at *4 (W.D.N.Y. March 14, 2019) (“Because Plaintiff never served the original Complaint, the 21-day time limit to file an amended complaint under Rule 15(a)(1)(A) never commenced.”) (emphasis added) with Henderson v. Wells Fargo Bank, NA, 13-CV-0378, 2015 WL 630438, at *2 (D. Conn. Feb. 13, 2015) (“Fed. R. Civ. P. 15(a) provides that a ‘party 2 supersedes an original complaint in all respects.3 This means that, potentially, Plaintiff’s Amended Complaint has partially mooted Magistrate Judge Dancks’ Report-Recommendation, which analyzed Plaintiff’s original Complaint. Out of a desire for judicial efficiency, the Court is tempted to apply the recommendations

in the Report-Recommendation to Plaintiff’s Amended Complaint. However, the Court is mindful of the Second Circuit’s admonition that a pro se plaintiff’s request to amend his complaint when a motion to dismiss is pending should be denied only without prejudice, or perhaps stayed until he has had the benefit of the district court’s ruling on the motion to dismiss.4 As a result, the Court has chosen to apply Magistrate Judge Dancks’ Report- Recommendation to Plaintiff’s original Complaint while deeming Plaintiff’s “Amended Complaint” (Dkt. No. 5) as a proposed Amended Complaint, and holding that proposed

Amended Complaint in abeyance pending confirmation from him that it is indeed the Amended

may amend its pleading once as a matter of course within . . . 21 days after serving it.’ Because Plaintiff has not yet served Defendant with the complaint, her motion is granted although unnecessary because leave of the Court is not required.”). 3 See Int'lControls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977) (“It is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect.”); 6 C. Wright & A. Miller, Federal Practice & Procedure § 1476, at 556-57 (2d ed. 1990) (“A pleading that has been amended under Rule 15(a) supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified.”); cf. N.D.N.Y. L.R. 7.1(a)(4) (“[T]he proposed amended pleading . . . will supersede the pleading sought to be amended in all respects.”). 4 See Cresci v. Mohawk Valley Community College, 693 F. App’x 21, 25 (2d Cir. June 2, 2017) (“The court’s criticism of Cresci for failure to submit a proposed amended complaint before learning whether, and in what respects, the court would find deficiencies was unjustified, and the court’s denial of leave to replead, simultaneously with its decision that the complaint was defective, effectively deprived Cresci of a reasonable opportunity to seek leave to amend.”). 3 Complaint on which he wishes to proceed. ACCORDINGLY, it is ORDERED that Magistrate Judge Dancks’ Report-Recommendation (Dkt. No. 4) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Plaintiff's Complaint (Dkt. No 1) shall be DISMISSED with prejudice UNLESS, within THIRTY (30) DAYS of the date of this Decision and Order, Plaintiff files an AMENDED COMPLAINT that cures the pleading defects identified in the Report- Recommendation; and it is further ORDERED that, if Plaintiff wishes his proposed Amended Complaint (Dkt. No. 5) to serve as that Amended Complaint, he shall notify the Court of that fact in writing within thirty days of the date of this Decision and Order; and it is further ORDERED that, should Plaintiff file a timely Amended Complaint (by either of the two methods identified in the two prior paragraphs), it shall be automatically referred to Magistrate Judge Dancks for her review. Dated: June 25, 2024 Syracuse, New York

U.S. District Judge