Blando v. Capra et al
||Michael Capra, Lerouge R., Johnson and John Doe 1-3
||January 3, 2017
||US District Court for the Southern District of New York
||White Plains Office
||Kenneth M. Karas
|Nature of Suit:
|Cause of Action:
||42 U.S.C. § 1983
|Jury Demanded By:
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|March 14, 2019
OPINION AND ORDER: For the foregoing reasons, Defendants' Motion To Dismiss is granted in part and denied in part. Defendants' Motion is denied with respect to Plaintiff's Eighth Amendment claims against Defendant Lerouge. Plaintiffs claims against Capra, Aitchison, Johnson, Cousins, and Quick are dismissed. Plaintiff's claims against Lerouge under the First and Fourteenth Amendments, as well as under the ADA, are also dismissed. Because this is the second adjudication of Pl aintiff's claims on the merits and he has failed to state a claim, the dismissal is with prejudice. Even pro se plaintiffs are not entitled to file an amended complaint if the complaint "contains substantive problems such that an amended pl eading would be futile." Lastra v. Barnes & Noble Bookstore, No. 11-CV-2173, 2012 WL 12876, at *9 (S.D.N.Y. Jan. 3, 2012), aff'd, 523 F. App'x 32 (2d Cir. 2013). Because the Court finds that further amendment would be futile, Plaintiff 's claims are dismissed with prejudice. The Clerk of the Court is respectfully requested to terminate the pending motion, (Dkt. No. 67), to terminate Defendants Capra, Aitchison, Johnson, Cousins, and Quick from the docket, and to mail a copy of this Opinion to Plaintiff. SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/14/2019) (jca) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.
|November 20, 2017
OPINION AND ORDER re: 23 MOTION to Dismiss Complaint filed by Johnson, Michael Capra, Lerouge R. For the foregoing reasons, Defendants' Motion To Dismiss is granted. However, because this is the first adjudication of Plaint iff's claims on the merits, the dismissal is without prejudice. Within 14 days of the date of this Opinion, the New York State Attorney General's Office, the attorney and agent for DOCCS, is directed to comply with the Court's previou s Valentin Order and provide the names and service addresses of John Does 1-3 to Plaintiff and the Court. (See Dkt. No. 8.) Within 30 days of receiving this information, Plaintiff must file an amended complaint naming the John Doe Defendants. Once P laintiff has filed an amended complaint, the Court will direct the Clerk of Court to fill out a USM-285 form for each off the new Defendants, issue a summons, and deliver all of the paperwork necessary to the Marshals Service to effect service upon Defendants. Plaintiff should also include within that amended complaint any changes to correct the deficiencies identified in this Opinion that Plaintiff wishes the Court to consider. The amended complaint will replace, not supplement, the original complaint. The amended complaint must contain all of the claims and factual allegations Plaintiff wishes the Court to consider, including the specific actions or omissions of each Defendant that violated Plaintiff's constitutional rights, and a ny facts showing that Defendants were aware of the risk to Plaintiff's safety and how they disregarded that risk. If Plaintiff fails to abide by the 30-day deadline, this Action could be dismissed with prejudice. The Clerk of the Court is respectfully requested to terminate the pending motion, (Dkt. No. 23), and to mail a copy of this Opinion to Plaintiff. (Signed by Judge Kenneth M. Karas on 11/16/2017) (mml)
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