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17-546 - Mitchell v. SUNY Upstate Medical University et al


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17-546 - Mitchell v. SUNY Upstate Medical University et al
May 22, 2017
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ORDER and REPORT-RECOMMENDATIONS re 2 MOTION for Leave to Proceed in forma pauperis filed by Robbie O. Mitchell, 1 Complaint filed by Robbie O. Mitchell. ORDERED, that plaintiffs application to proceed IFP (Dkt. No. 2), is DENIED WITHOUT PREJUDICE, and it is RECOMMENDED, that this action be DISMISSED IN ITS ENTIRETY, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) WITH PREJUDICE as against defendants Reed and Mazzone based on failure to state a claim, and it is RECOMMENDED, that this action be DISMISSED IN ITS ENTIRETY WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) as to defendant SUNY Upstate, and it is RECOMMENDED, that if the district court adopts this Order and Report-Recommendation, plaintiff be allowed the opportunity to submit a properly completed application to proceed IFP, together with a proposed amended complaint within thirty(30) days of the courts approval order, and it is RECOMMENDED, that if plaintiff fails to file a proposed amended complaint together with a new IFP application within thirty (30) days from the date of the courts order approving this recommendation or within the expiration of any requested extension of time to do so, the complaint be dismissed with prejudice, and it is RECOMMENDED, that if plaintiff files a proposed amended complaint together with the new IFP application within the appropriate time, the court order the Clerk to send the proposed amended complaint to me for review. Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)(citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72. Objections to R&R due by 6/8/2017 Case Review Deadline 6/12/2017. Signed by US Magistrate Judge Andrew T. Baxter on May 22, 2017. (Copy served via regular and certified)(khr)
June 22, 2017
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ORDER adopting Report and Recommendations re 5 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Baxter's Order and Report-Recommendation is ADOPTED in its entirety for the reasons stated therein; and the Court further ORDERS that this matter is referred to Magistrate Judge Baxter for review of the amended complaint and application for leave to proceed in forma pauperis. Signed by U.S. District Judge Mae A. D'Agostino on 6/22/2017. (Copy served via regular mail)(ban)