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16-332 - Blowers v. New York State Police Trooper JT Nigro, Jr. et al


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16-332 - Blowers v. New York State Police Trooper JT Nigro, Jr. et al
March 28, 2016
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ORDER and REPORT-RECOMMENDATION: Re: 1 Complaint filed by Jason T. Blowers: Ordered, that plaintiff's application to proceed IFP (Dkt. No. 2) is Granted for Purposes of Filing; Recommended, that this action be Dismissed with Prejudice pursuant to 28 U.S.C. 1915(e)(2)(B)(ii)-(iii), based upon Eleventh Amendment immunity as to any claims against defendants in their Official Capacities, and for failure to state a claim with respect to plaintiff's claim that he was denied a proper investigation of his claims against the officers; Recommended, that this action be Dismissed Without Prejudice pursuant to 28 U.S.C. 1915(e)(2)(B)(ii) for failure to state a claim with respect to plaintiff's Fourth Amendment search and seizure claim; Recommended, that if the District Court adopts this recommendation, plaintiff be given forty-five (45) days within which to file a proposed amended complaint only with respect to his search and seizure claim; Recommended, that if plaintiff fails to file a proposed amended complaint or request a proper extension of time to do so within the forty-five (45) days, the court order dismissal of this entire complaint With Prejudice and Recommended, that if plaintiff files a proposed amended complaint within the time allotted or within any time extension granted by the court, the case be referred to me for review of the proposed amended complaint. (Objections to R&R due by 4/14/2016, Case Review Deadline 4/18/2016), Motions terminated: 2 MOTION for Leave to Proceed in forma pauperis filed by Jason T. Blowers.Signed by US Magistrate Judge Andrew T. Baxter on 03/28/2016. (hmr)
April 28, 2016
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ORDERED, that Plaintiffs Application (Dkt. No. 2) to proceed in forma pauperis is GRANTED; and it is further ORDERED, that the Complaint (Dkt. No. 1) is DISMISSED. Plaintiffs official capacity claims and claim that he had the right to an investigation are dismissed with prejudice; his search and seizure claim is dismissed without prejudice; and it is further ORDERED, that if Plaintiff wishes to proceed with this action he must file an amended complaint with respect to his search and seizure claim within forty-five (45) days of the filing date of this Order; and it is further ORDERED, that upon the filing of an amended complaint as directed above, the Clerk shall return the file to the Court for further review; and it is further ORDERED, that in the event Plaintiff fails to file a signed amended complaint within forty-five (45) days of the filing date of this Order, the Clerk shall enter judgment dismissing this action due to Plaintiffs failure to state a claim upon which relief may be granted and to comply with the terms of this Order, without further order of the Court. Signed by Senior Judge Lawrence E. Kahn on April 28, 2016.***A copy of this order was served upon the pro se party by regular US mail. (sas)