Davis v. Collado et al
| Kevin Davis |
| J. Collado, Frederick Bernstein and Cruz |
| 1:2016cv07139 |
| September 13, 2016 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| Dutchess |
| Colleen McMahon |
| Civil Rights |
| 42 U.S.C. ยง 1983 |
| Plaintiff |
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Filing
49
ORDER OF DISMISSAL... This Action is dismissed without prejudice for failure to prosecute. See Osborn v. City of New York, No. 15-CV-9730, 2018 WL 2059944, at *3 (S.D.N.Y. Apr. 6, 2018) (dismissing case where the plaintiff had "gone incommunic ado... for at least five months, a duration of sufficient significance so as to tip in favor of dismissal as a matter of law"), adopted by 2018 WL 2059842 (S.D.N.Y. May 1, 2018), appeal dismissed No. 18-1639, 2019 WL 2369924 (2d Cir. Jan. 16, 2019); Mena v. City of New York, No. 15-CV-3707, 2017 WL 6398728, at *2 (S.D.N. Y. Dec. 14, 2017) (noting that "a pro se plaintiff is not exempt from complying with court orders and must diligently prosecute his case"). The Clerk of Court is directed to mail a copy of this Order to Plaintiff and to close this case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 12/10/19) (yv) Transmission to Docket Assistant Clerk for processing.
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Filing
37
OPINION AND ORDER re: 20 MOTION to Dismiss the Complaint filed by Frederick Bernstein, J. Collado, Cruz. For the foregoing reasons, Defendants' Motion To Dismiss is granted in part and denied in part. All claims are dismisse d except for the Eighth Amendment claim with respect to Cruz's alleges searches of Plaintiff's cell that occurred three times a day for over a month. However, because this is the first adjudication of Plaintiff's claims on the merits , the dismissal is without prejudice. See Terry v. Inc. Vill. Of Patchogue, 826 F.3d 631, 633 (2d Cir. 2016) (explaining that "district judges should, as a general matter, liberally permit pro se litigants to amend their pleadings" unles s "amendment would be futile"). Should Plaintiff choose to file an amended complaint, he must do so within 30 days of this Opinion, addressing the deficiencies identified herein. The amended complaint will replace, not supplement, the cur rent complaint. It therefore must contain all of the claims and factual allegations Plaintiff wishes the Court to consider. The Court will not consider factual allegations raised in supplemental declarations, affidavits, or letters. If Plaintiff f ails to abide by the 30-day deadline, all dismissed claims could be dismissed with prejudice. The Clerk of the Court is respectfully requested to terminate the pending motion, (0kt. No. 20), and to mail a copy of this Opinion to Plaintiff. SO ORDERED. (Signed by Judge Kenneth M. Karas on 9/29/2018) (ne) Transmission to Docket Assistant Clerk for processing.
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