Praileau v. Fischer, No. 1:12–CV–1261 (GTS/RFT).

CourtUnited States District Courts. 2nd Circuit. United States District Court of Northern District of New York
Writing for the CourtGLENN T. SUDDABY
Citation930 F.Supp.2d 383
PartiesWilliam R. PRAILEAU, Plaintiff, v. Brian FISCHER, Comm'r, NY DOCCS; Michael Ketterer, Parole Officer, Div. of Parole; Amy E. Burock, Assist. D.A., Schenectady Cnty.; Polly Hoye, Schenectady Cnty. Court Judge; Karen Drago, Schenectady Cnty. Court Judge; New York State; and Schenectady Cnty., Defendants.
Decision Date08 March 2013
Docket NumberNo. 1:12–CV–1261 (GTS/RFT).

930 F.Supp.2d 383

William R. PRAILEAU, Plaintiff,
v.
Brian FISCHER, Comm'r, NY DOCCS; Michael Ketterer, Parole Officer, Div.
of Parole; Amy E. Burock, Assist. D.A., Schenectady Cnty.; Polly Hoye, Schenectady Cnty. Court Judge; Karen Drago, Schenectady Cnty. Court Judge; New York State; and Schenectady Cnty., Defendants.

No. 1:12–CV–1261 (GTS/RFT).

United States District Court,
N.D. New York.

March 8, 2013.


[930 F.Supp.2d 385]


William R. Praileau, Schenectady, NY, pro se.


MEMORANDUM–DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in this civil action filed pro se by William R. Praileau

[930 F.Supp.2d 386]

(“Plaintiff”) against the six above-captioned state and municipal employees and entities (“Defendants”), are (1) United States Magistrate Judge Randolph F. Treece's Report–Recommendation recommending that Plaintiff's Complaint be dismissed, (2) Plaintiff's Objections to the Report–Recommendation, and (3) Plaintiff's Amended Complaint. (Dkt. Nos. 3, 5, 6.) For the reasons set forth below, Magistrate Judge Treece's Report–Recommendation is accepted and adopted, and Plaintiff's Amended Complaint is sua sponte dismissed in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B), Fed.R.Civ.P. 12(h)(3), Fed.R.Civ.P. 12(b)(6), and Fed.R.Civ.P. 12(b)(1).

I. RELEVANT BACKGROUNDA. Plaintiff's Complaint

Generally, in his original Complaint, Plaintiff asserts a claim for breach-of-contract against Defendants, under the Court's jurisdiction to entertain diversity-of-citizenship suits (pursuant to 28 U.S.C. § 1332), arising from his entry (under duress) into a May 2012 agreement regarding his conditions of his post-release supervision, which is defunct or invalid because it stems from a March 2007 indictment that was improper. ( See generally Dkt. No. 1.)

B. Magistrate Judge Treece's Report–Recommendation

Generally, in his Report–Recommendation, Magistrate Judge Treece recommends that Plaintiff's Complaint be dismissed for each of the following two alternative reasons: (1) Plaintiff has not met his burden of showing that diversity-of-citizenship jurisdiction exists under 28 U.S.C. § 1332, because Defendants are residents of New York State, and both Plaintiff's mailing address and his approved release address are in Schenectady, New York; (2) in any event, no federal-question jurisdiction exists under 28 U.S.C. § 1331, because the only conceivable claim that he could have (consistent with the factual allegations of his Complaint) would arise under 42 U.S.C. § 1983, but is barred by the fact that he has failed to show that this conviction or sentence has been overturned, as required by Heck v. Humphrey, 512 U.S. 477, 486–87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). ( See generally Dkt. No. 3.)

C. Plaintiff's Objections

Generally, in his Objections, Plaintiff asserts the following six arguments: (1) his Complaint cannot be dismissed because it was never properly filed by the Clerk of the Court in accordance with by Fed.R.Civ.P. 3; (2) his Complaint cannot be dismissed because the Court has “corrupt[ed]” his name, given that the nominal plaintiff in this action—“William R. Praileau” is “an artificial person” or “corporation,” while that plaintiff's “authorized representative” or “attorney in fact—“William R. Praileau©”—is “a natural person” of “flesh and blood”; (3) his Complaint cannot be dismissed because, by designating him as “pro se” in this action, the Court has denied his right to effective assistance of counsel; (4) his Complaint cannot be dismissed because he never consented Magistrate Judge Treece's participation in this proceeding; (5) Magistrate Judge Treece's finding regarding Plaintiff's underlying sentence in this action is improper because it was based, in part, on information found on the internet at http:// nysdoccslookup. doccs. ny. gov; and (6) Magistrate Judge Treece's Report–Recommendation is moot, given that Plaintiff is filing an Amended Complaint. ( See generally Dkt. No. 5.)

[930 F.Supp.2d 387]

D. Plaintiff's Amended Complaint

Three days after filing his Objections to Magistrate Judge Treece's Report–Recommendation, Plaintiff filed an Amended Complaint in this action. (Dkt. No. 6.) Four days after that, Plaintiff filed exhibits to his Amended Complaint. (Dkt. No. 7.)

Construed with the utmost of special liberality, Plaintiff's Complaint and exhibits continues to assert claims against Defendants arising from his entry (under duress) into a May 2012 agreement regarding his conditions of his post-release supervision, which is defunct or invalid because it stems from a March 2007 indictment that was improper. (Dkt. Nos. 6, 7.) The only real differences between Plaintiff's original Complaint and his Amended Complaint are as follows: (1) in addition to asserting a breach-of-contract claim against Defendants, Plaintiff's Amended Complaint asserts five other claims (specifically, conversion, unjust enrichment, estoppel, false imprisonment, and fraud); (2) in addition to invoking the Court's diversity-of-citizenship jurisdiction under 28 U.S.C. § 1332, Plaintiff invokes the Court's federal-question jurisdiction pursuant to 28 U.S.C. § 1331 and “15 U.S.C. § 1692e(1)(4)”; (3) Plaintiff lengthens his pleading, inserting an introductory paragraph, “Venue” section, a “Parties” section, and a “Brief History of the Case” section; and (4) Plaintiff expands on his theory that, pursuant to the Uniform Commercial Code, the nominal plaintiff in this action—“William R. Praileau™” (a/k/a “William Robert Best”)—is “a corporation distinct from [his] authorized representative”—“William R. Praileau©”—who “does NOT reside within the federal United States.” ( Id. [emphasis in original].)

II. GOVERNING LEGAL STANDARDSA. Standard Governing Review of a Report–Recommendation

When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection must, with particularity, “identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c).1 When performing such a de novo review, “[t]he judge may ... receive further evidence....” 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance.2

[930 F.Supp.2d 388]

When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b)(2), (3); Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition.3 Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.4 Finally, when no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id.5

After conducing the appropriate review, the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

B. Circumstances Under Which Report–Recommendation Challenging Pleading Sufficiency of Complaint Is Not Mooted by Filing of Amended Complaint

Granted, Fed.R.Civ.P. 15 gives a plaintiff an absolute right to file an amended complaint under the circumstances presented in this case Fed.R.Civ.P. 15(a)(1). Furthermore, the filing of an amended Complaint supersedes a plaintiff's original complaint in all respects. N.D.N.Y. L.R. 7.1(a)(4); see also Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir.1977); Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994). As a result, “[t]ypically, the filing of an amended complaint following the filing of a motion to dismiss the initial complaint moots the motion to dismiss.” Johnson v. Brown, 11–CV–0188, 2011 WL 4565923, at *2 (N.D.N.Y. Sept. 29, 2011) (Homer, M.J.)

[930 F.Supp.2d 389]

(internal quotation marks and citations omitted).

However, the filing of an amended complaint does not moot a pending report-recommendation that identifies pleading defects in the original complaint when those defects remain in the that amended complaint. As this Court has previously explained,

to the extent that Plaintiff's Amended Complaint corrects the pleading deficiencies identified in the Report–Recommendation, the Report–Recommendation has been rendered moot. However, to the extent that Plaintiff's Amended Complaint does not correct the pleading deficiencies identified in the Report–Recommendation, the Report–Recommendation is still applicable.

Gasaway v. Williams, 11–CV–0549, 2012 WL 264611 at *4 (N.D.N.Y. Jan. 30, 2012) (Suddaby, J.). This is especially the case where the plaintiff has, in addition to filing an amended complaint, filed objections to the report-recommendation. See L.C. 1 v. Delaware, 07–CV–0675, 2009 WL 3806335, at *1 (D.Del. Nov. 13, 2009) (“On Plaintiffs' view, if their Objections to the R & R are sustained, Plaintiffs get to proceed on their Complaint; if their Objections are overruled, they get to proceed on their Amended Complaint—even if it suffers from the same problems as the original Complaint-and require the defendants, the magistrate judge, and the district court judge to begin anew with assessing the sufficiency of the Amended Complaint.”).


A contrary interpretation of Fed.R.Civ.P. 15...

To continue reading

Request your trial
22 practice notes
  • Thompson v. Pallito, No. 1:12–cv–225–jgm–jmc.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • May 29, 2013
    ...complaint are generally regarded as moot upon the filing of an amended complaint. See Praileau v. Fischer, No. 1:12–CV–1261(GTS/RFT), 930 F.Supp.2d 383, 388, 2013 WL 936447, at *3 (N.D.N.Y. Mar. 8, 2013) (“Typically, the filing of an amended complaint following the filing of a motion to dis......
  • Doe v. Knights of Columbus, No. 3:10–CV–1960 (CSH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • March 12, 2013
    ...relief with respect to whether the release document attached to Plaintiff's Complaint as Exhibit A, entitled “Settlement Agreement [930 F.Supp.2d 383]and Full Release,” is void as “procured by fraud.” Doc. # 1, ¶ 42. It is the Court's understanding from the papers that Plaintiff was a citiz......
  • Barragan-Aquino v. E. Port Excavation & Utilities Contractors, Inc., 13-CV-343 (SJF)(ARL)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 18, 2014
    ...no timely objection has been interposed to determine whether the magistrate judge committed "plain error."); Praileau v. Fischer, 930 F. Supp. 2d 383, 388 (N.D.N.Y. 2013) (holding that when no objection or only a general objection is made to a portion of a magistrate judge's report and reco......
  • Bey v. Butzbaugh, Case No. 1:13-cv-1173
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • September 25, 2014
    ...v. Michigan Dep't of Corrections, No. 1:14-cv-756, 2014 WL 4187675, at * 20-21 (W.D. Mich. Aug. 21, 2014); Praileau v. Fischer, 930 F. Supp. 2d 383, 393 (N.D.N.Y. 2013).Recommended Disposition For the foregoing reasons, I recommend that plaintiff's claims against defendant Diggs be dismisse......
  • Request a trial to view additional results
21 cases
  • Thompson v. Pallito, No. 1:12–cv–225–jgm–jmc.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • May 29, 2013
    ...complaint are generally regarded as moot upon the filing of an amended complaint. See Praileau v. Fischer, No. 1:12–CV–1261(GTS/RFT), 930 F.Supp.2d 383, 388, 2013 WL 936447, at *3 (N.D.N.Y. Mar. 8, 2013) (“Typically, the filing of an amended complaint following the filing of a motion to dis......
  • Doe v. Knights of Columbus, No. 3:10–CV–1960 (CSH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • March 12, 2013
    ...relief with respect to whether the release document attached to Plaintiff's Complaint as Exhibit A, entitled “Settlement Agreement [930 F.Supp.2d 383]and Full Release,” is void as “procured by fraud.” Doc. # 1, ¶ 42. It is the Court's understanding from the papers that Plaintiff was a citiz......
  • Barragan-Aquino v. E. Port Excavation & Utilities Contractors, Inc., 13-CV-343 (SJF)(ARL)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 18, 2014
    ...no timely objection has been interposed to determine whether the magistrate judge committed "plain error."); Praileau v. Fischer, 930 F. Supp. 2d 383, 388 (N.D.N.Y. 2013) (holding that when no objection or only a general objection is made to a portion of a magistrate judge's report and reco......
  • Bey v. Butzbaugh, Case No. 1:13-cv-1173
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • September 25, 2014
    ...v. Michigan Dep't of Corrections, No. 1:14-cv-756, 2014 WL 4187675, at * 20-21 (W.D. Mich. Aug. 21, 2014); Praileau v. Fischer, 930 F. Supp. 2d 383, 393 (N.D.N.Y. 2013).Recommended Disposition For the foregoing reasons, I recommend that plaintiff's claims against defendant Diggs be dismisse......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT