Opinion
10 Civ. 3102 (JSR) (MHD).
August 17, 2011
ORDER
On June 2, 2011, the Honorable Michael H. Dolinger, United States Magistrate Judge, issued a Report and Recommendation in the above-captioned matter recommending that defendants' motion to dismiss be granted in part and denied in part. See 06/02/11 Report Recommendation at 33-35. Objections to the Report Recommendation, if any, were due on June 20, 2011.
In early July the Court received a voluminous submission from the plaintiff. This submission appears to be addressed to each one of the three separate actions plaintiff has filed in this Court. See docket numbers 10 civ. 3102, 10 civ. 1782, and 10 civ. 3102. Notwithstanding the fact that plaintiff's submission was technically untimely and confusingly addressed to various issues in three different actions, the Court has construed plaintiff's submission as a written objection to the June 2, 2011 Report and Recommendation and has reviewed both the objections and the underlying record de novo.
Having done so, the Court finds itself in agreement with Magistrate Judge Dolinger's Report and Recommendation and hereby adopts its reasoning by reference. Accordingly, the Court hereby: (1) dismisses with prejudice plaintiff's request for injunctive relief and plaintiff's Fourteenth Amendment claim for verbal assault; (2) dismisses without prejudice plaintiff's Fourteenth Amendment claim for racial discrimination and plaintiff's claims against the City of New York; and (3) denies defendants' motion to dismiss plaintiff's Fourteenth Amendment claim with respect to the toilet and sewage issues.
The Court notes, however, that while the June 2, 2011 Report Recommendation recommends that the Court dismiss plaintiff's Fourteenth Amendment claim for overcrowding, see 06/02/11 Report Recommendation at 17-20, it does not appear to unambiguously state whether the dismissal should be with or without prejudice. Accordingly, the Court hereby clarifies this ambiguity and orders that this claim be dismissed without prejudice.
In accordance with the conclusions of the 06/02/11 Report Recommendation, plaintiff is hereby given leave to file a second amended complaint, which must be filed by no later than October 1, 2011. The plaintiff is advised, however, that this will be his last opportunity to adequately plead the asserted violations, and that further leave to amend will not be granted.
SO ORDERED.
Dated: New York, New York
August 16, 2011