Opinion
5:21-CV-85
08-26-2021
RODERICK GOLDEN, Plaintiff, v. JOHN GAGNE et al., Defendants.
RODERICK GOLDEN Plaintiff, Pro Se
RODERICK GOLDEN Plaintiff, Pro Se
ORDER ON REPORT & RECOMMENDATION
DAVID N. HURD, UNITED STATES DISTRICT JUDGE
On January 25, 2021, pro se plaintiff Roderick Golden (“plaintiff') filed this action alleging that the named defendants violated his constitutional rights. Dkt. No. 1. Plaintiff also moved to appoint counsel and to proceed in forma pauperis. Dkt. Nos. 2, 3.
On April 21, 2021, U.S. Magistrate Judge Therese Wiley Dancks granted plaintiffs motion for leave to proceed in forma pauperis and denied plaintiffs motion to appoint counsel. Dkt. No. 6. Judge Dancks further advised by Report & Recommendation (“R&R”) that plaintiffs complaint be dismissed without prejudice because it failed to provide sufficient information for the Court to review or for defendants to have fair notice of the claims against them. Id. This Court adopted Judge Dancks's R&R on May 13, 2021. Dkt. No. 7. Thereafter, plaintiff filed an amended complaint and another motion to appoint counsel. Dkt. Nos. 11, 12.
On July 21, 2021, Judge Dancks conducted an initial review of the amended complaint and advised by R&R that the pleading be accepted for filing. Dkt. No. 13. In particular, Judge Dancks recommended that plaintiffs: (1) Fourth Amendment false arrest claim against defendants Gagne and Root survive initial review; (2) Fourth Amendment malicious prosecution claim against defendant Gagne survive initial review. Id. However, Judge Dancks recommended that plaintiffs remaining claims be dismissed for failure to state a claim. Id. Judge Dancks further denied plaintiffs motion for the appointment of counsel. Id.
Plaintiff has filed objections. Dkt. No. 14. Upon de novo review of the portions to which plaintiff has objected, the Report & Recommendation will be accepted and adopted in all respects. See 28 U.S.C. § 636(b)(1)(C).
Therefore, it is
ORDERED that
1. The Report & Recommendation is ADOPTED;
2. Plaintiff's amended complaint is accepted for filing;
3. Plaintiff's Fourth Amendment false arrest claim against defendants Gagne and Root survives initial review and requires a response;
4. Plaintiff's Fourth Amendment malicious prosecution claim against defendant Gagne survives initial review and requires a response;
5. Plaintiff's remaining claims are dismissed pursuant to 28 U.S.C. § 1915(e) for failure to state a claim upon which relief can be granted;
6. The Clerk of the Court is directed to TERMINATE DA Fitzpatrick, Judge Marks, and Furlong as defendants;
7. The Clerk of the Court shall provide plaintiff with blank summonses for service upon defendants Gagne and Root;
8. The plaintiff shall complete these summonses and provide them to the Clerk within twenty-one days from the issuance of this opinion;
9. Upon receipt from plaintiff of the completed summonses, the Clerk shall issue and forward them, along with a copy of the operative complaint and a packet containing General Order 25, which sets forth the Civil Case Management Plan used by the Northern District of New York, to the United States Marshal for service upon the defendants; and
10. A response to the complaint shall be filed by defendants or their counsel as provided for in the Federal Rules of Civil Procedure.
IT IS SO ORDERED.