Harrison v. New York

95 F.Supp.3d 293

Malek HARRISON, Plaintiff

v.State of NEW YORK; County of Nassau; Nassau County Police Department; Ronald Rispoli; Anthony Dicaprio ; Jeffrey S. Marshall; Nassau County Office of the District Attorney; Jhounelle Cunningham; The TJK Companies, Inc.; Nils Renner; Christine Grimaudo; United States Secret Service; Joseph Gerbino; Geoffrey Prime; and The Law Office of Elliot Schlissel, Defendants.

No. 14–CV–1296 JFBAKT.

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

Signed March 20, 2015.

Malek Harrison, Rosedale, NY, pro se.

Lori L. Pack, Office of the New York State Attorney General, Hauppauge, NY, Ralph J. Reissman, Mineola, NY, Craig M. Dolinger, McAndrew Conboy & Prisco LLP, Woodbury, NY, Diane C. Leonardo–Beckmann, United States Attorneys Office, Central Islip, NY, Daniel M. Maunz, Scott E. Kossove, Amy M. Monahan, L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, NY, Jordan S. Palatiello, Matthew K. Flanagan, Catalano Gallardo & Petropoulos, LLP, Jericho, NY, for Defendants.

ORDER

JOSEPH F. BIANCO, District Judge:

Before the Court is a Report and Recommendation (“R & R”) from Magistrate Judge Tomlinson, recommending that the Court grant the defendants' separate motions to dismiss pro se plaintiffs claims, except with respect to the claims against U.S. Secret Service Agent Joseph Gerbino (“Agent Gerbino”) in his individual capacity. For the reasons set forth below, having considered the parties' submissions, as well as having reviewed the entire R & R de novo (with Agent Gerbino's objections), the Court adopts Magistrate Judge Tomlinson's thorough and well-reasoned R & R in its entirety, and grants pro se plaintiff an additional 30 days to serve Agent Gerbino with the summons and complaint.

I. PROCEDURAL HISTORY

On February 26, 2014, pro se plaintiff Malek Harrison filed this complaint under 42 U.S.C. § 1983 alleging violations of his Fourth, Fifth, Sixth, and Fourteenth Amendment rights based on his arrest and prosecution in state court for criminal possession of a forged instrument. The following defendants have moved to dismiss the claims: the State of New York (“the State”) on May 19, 2014 (Docket No. 23); the U.S. Secret Service and Agent Gerbino (collectively, “the Federal Defendants”) on August 25, 2014 (Docket No. 47); the TJX Companies, Inc., Christine Grimaudo, and Nils Renner (collectively, “the TJX Defendants”) on June 9, 2014 (Docket No. 29); Attorney Geoffrey Prime on April 17, 2014 (Docket No. 13); and the Law Office of Elliot Schlissel on May 2, 2014 (Docket No. 14). By Order dated August 29, 2015, the Court referred the motions to dismiss to Magistrate Judge Tomlinson for an R & R.

On February 13, 2015, Magistrate Judge Tomlinson issued an R & R recommending that the Court: (1) grant the State's motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) ; (2) grant the Federal Defendants' motion to dismiss plaintiffs claims against the Secret Service and Agent Gerbino in his official capacity under Rule 12(b)(1) for lack of subject matter jurisdiction, but deny their motion to dismiss plaintiff's claims against Agent Gerbino in his individual capacity and grant plaintiff 30 days to effectuate service of the summons and complaint upon Agent Gerbino; (3) grant the TJX Defendants' motion to dismiss under Rule 12(b)(6) ; (4) grant the Law Office of Elliot Schlissel's motion to dismiss; (5) grant Attorney Prime's motion to dismiss; (6) decline to exercise supplemental jurisdiction over the state law claims against the TJX Defendants, Attorney Prime, and the Law Office of Elliot Schlissel; and (7) deny plaintiff leave to re-plead the dismissed claims.

The R & R further instructed that any objections be submitted within fourteen (14) days of service of the R & R. (See R & R dated February 13, 2015 at 45.) As indicated by the docket sheet, copies of the R & R were mailed to plaintiff by the Federal Defendants, the Law Office of Elliot Schlissel, Attorney Prime, and the TJK Defendants on February 17, 2015 and February 18, 2015. (See ECF Nos. 54–57.) Agent Gerbino submitted his objections to the R & R on February 27, 2015. Pro se plaintiff has filed no objections to date, although the date for filing any objections has expired.

II. STANDARD OF REVIEW

A district judge may accept, reject, or modify, in whole or in part, the findings and recommendations of the Magistrate Judge. See DeLuca v. Lord, 858 F.Supp. 1330, 1345 (S.D.N.Y.1994) ; Walker v. Hood, 679 F.Supp. 372, 374 (S.D.N.Y.1988). As to those portions of a report to which no “specific written objections” are made, the Court may accept the findings contained therein without de novo review, as long as the factual and legal bases supporting the findings are not clearly erroneous. See Fed.R.Civ.P. 72(b) ; Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y.1997). When “a party submits a timely objection to a report and recommendation, the district judge will review the parts of the report and recommendation to which the party objected under a de novo standard of review.” Jeffries v. Verizon, 10–CV–268 (JFB)(AKT), 2012 WL 4344188, at *1 (E.D.N.Y. Sept. 21, 2012) ; see also 28 U.S.C. § 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.”).

III. ANALYSIS

A. The Claims Against Agent Gerbino

Here, Agent Gerbino filed a timely objection to Judge Tomlinson's R & R on February 27, 2015. As a result, the Court will conduct a de novo review of the portions of the R & R to which Agent Gerbino objects, namely the portion that grants plaintiff a 30–day extension to properly effectuate service and that declines to consider other Rule 12(b)(6) grounds for dismissal of the claims against Agent Gerbino in his individual capacity. (Agent Gerbino's Objections at 4.)

i. The Relevant Portions of the R & R

To summarize, the Federal Defendants moved for dismissal of the claims against Agent Gerbino under three theories: first, that the claims against the Secret Service and Agent Gerbino in his official capacity are barred by sovereign immunity; second, that the claim against Agent Gerbino in his individual capacity should be dismissed under Rule 12(b)(5) because pro se plaintiff failed to serve Agent Gerbino with the complaint; and, third, that the claims against Agent Gerbino should be dismissed under Rule 12(b)(6) because plaintiff's false arrest claims are time-barred, plaintiff has failed to adequately state a claim of unconstitutional misconduct by Agent Gerbino, and Agent Gerbino is entitled to qualified immunity. (Federal Defs' Mem. Of Law in Support of Motion to Dismiss the [C]omplaint, 5–12.)

In the R & R, Judge Tomlinson recommends that the Court dismiss the claims against the Secret Service and Agent Gerbino in his official capacity under Rule 12(b)(1) for lack of subject matter jurisdiction. However, after reviewing the Federal Defendants' second argument—namely, that the action should be dismissed under Rule 12(b)(5) for lack of service—Judge Tomlinson concludes that “although Plaintiff failed to serve Agent Gerbino or show good cause for lack of service, he should be granted a discretionary extension to effectuate service upon Agent Gerbino in his individual capacity.” (R & R at 17.) Accordingly, Judge Tomlinson recommends that the Court deny the motion to dismiss the claims against Agent Gerbino in his individual capacity and grant plaintiff an additional 30 days within which to serve the summons and complaint upon Agent Gerbino. (Id. ) As the question of proper service is a jurisdictional matter, Judge Tomlinson notes that the Court “should first address the preliminary questions of service and personal jurisdiction before turning, if necessary to the defendants' Rule 12(b)(6) arguments.” (R & R at 20 (quotation marks and citation omitted).) As a result, the R & R does not address the Federal Defendants' additional arguments for dismissal of the claims against Agent Gerbino under Rule 12(b)(6).

ii. Agent Gerbino's Objections

Agent Gerbino first objects to Judge Tomlinson's recommendation that the Court provide pro se plaintiff with additional time to effectuate service. Agent Gerbino argues that granting a 30–day extension “contravenes this Court's order on March 5, 2014, directing [p]laintiff to serve the [c]omplaint on the [d]efendants on or before June 26, 2014” (Agent Gerbino's Objections at 4), and that the four factors outlined in Purzak v. Long Island Housing Servs., Inc. do not weigh in favor of granting the plaintiff an extension absent a showing of good cause. No. 12–CV–1747, 2013 WL 5202711, at *5 (E.D.N.Y. Sept. 13, 2013). After reviewing Judge Tomlinson's recommendations, the Court agrees with her finding that “the [Purzak ] factors militate against dismissal of the Complaint and weigh in favor of granting Plaintiff—a pro se litigant—a final opportunity to effectuate proper service on Agent Gerbino.” (R & R at 24–25.) As Magistrate Judge Tomlinson notes, in analyzing the factors, there is no prejudice to Agent Gerbino to allowing re-service. If plaintiff re-serves, Agent Gerbino can simply re-file his same Rule 12(b)(6) motion and the Court will address it expeditiously once plaintiff is given an opportunity to respond, including providing any possible basis for equitable tolling.

Agent Gerbino also objects to the fact that Judge Tomlinson did not consider the Federal Defendants additional arguments for dismissal under Ruler 12(b)(6). After de novo review and thorough consideration of Agent Gerbino's...