Smith v. Fredrico

JONATHAN K. SMITH, a member of the Shinnecock Indian Nation, Plaintiff, v. VINCENT FREDRICO, in his individual capacity as Patrol Officer, Suffolk County Police Department, ROBERT TROTTA, in his individual capacity as Detective, Suffolk County Police Department, and JOHN DOES 1-10, Defendants.

12-cv-04408 (ADS)(ETB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

SO ORDERED: January 8, 2013

ORDER

APPEARANCES:

Moore International Law Office

Attorneys for the Plaintiff

By: Scott M. Moore, Esq., of Counsel

Office of the Suffolk County Attorney

Attorneys for the Defendant Vincent Fredrico H. Lee Dennison Building

By: Assistant Suffolk County Attorney Chris P. Termini

United States Attorney, Eastern District of New York

Attorneys for the Defendant Robert Trotta

By: Assistant United States Attorney Diane C. Leonardo-Beckman,

Assistant United States Attorney Thomas A. McFarland

SPATT, District Judge.

On September 4, 2012, the Plaintiff, a member of the Shinnecock Indian Nation, initiated the present action, arising from an allegedly illegal stop and search of the Plaintiff's truck that occurred on July 21, 2012. The Plaintiff is bringing several causes of action, including violations of the Indian Religious Freedom Act of 1978 and the Fort Albany Treaty, as well as civil rights actions pursuant to 42 U.S.C. §§ 1982, 1983, 1985, and 1986. In addition, the Plaintiff has filed a motion for a preliminary injunction, requesting an accounting and return of all property seized from the Plaintiff during this traffic stop, namely $34,623.00 in cash and approximately 2,100 cartons of cigarettes.

On October 6, 2012, the Court referred this matter to United States Magistrate Judge E. Thomas Boyle for the purpose of holding a hearing and issuing a Report and Recommendation addressing the Plaintiff's motion for preliminary injunction and addressing such other related issues as Judge Boyle found appropriate.

Following a hearing on October 19, 2012, Judge Boyle issued a Report and Recommendation on November 20, 2012, which found that the Plaintiff had not established that he would suffer irreparable harm absent a preliminary injunction. Specifically, Judge Boyle found that there was nothing in the record to suggest that the Plaintiff could not be adequately compensated through the payment of monetary damages in the event that it is ultimately determined that his property was wrongfully seized by the Defendants. With regard to the $34,623.00 in cash seized, Judge Boyle's Report stated that "it is self-evident that the [P]laintiff can be compensated for this temporary deprivation with monetary damages, and the [P]laintiff is therefore ineligible for injunctive relief with regard to this portion of the seized property." (DE 27 at 5.) With regard to the cigarettes, Judge Boyle found them to be fungible based on relevantprecedent, and thus found that monetary damages would be sufficient to compensate the Plaintiff for any potential loss with regard to the cigarettes that were seized, so that the Plaintiff was not entitled to a preliminary injunction. The Plaintiff Smith filed a number of objections to Judge Boyle's Report and Recommendation.

After reviewing the Plaintiff's objections, this Court adopts the Report and Recommendation in its entirety and denies the Plaintiff's request for a preliminary injunction.

I. DISCUSSION

A. Standard of Review

A court is required to make a de novo determination as to those portions of the Report and Recommendation to which objections were made. 28 U.S.C. § 636(b)(1)(C); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). The phrase "de novo determination" in Section 636(b)(1) — as opposed to "de novo hearing" — was selected by Congress "to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations." United States v. Raddatz, 447 U.S. 667, 676, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980). Section 636 does not require a court "to rehear the contested testimony in order to carry out the statutory command to make the required 'determination.'" Id. at 674, 100 S. Ct. 2406. Rather, in making such a determination, a court may, in its discretion, review the record and hear oral argument on the matter. See Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40 n.3 (2d Cir. 1990). Furthermore, a court may, in its sound discretion, afford a degree of deference to the magistrate's Report and Recommendation. See Raddatz, 447 U.S. at 676, 100 S. Ct. 2406, 65 L. Ed. 2d 424.

In a case where a party "makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error."Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008) (quoting Barratt v. Joie, No. 96 Civ. 324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002)). "Furthermore, even in a de novo review of a party's specific objections, the Court ordinarily will not consider 'arguments, case law and/or evidentiary material which could have been, but were not, presented to the magistrate judge in the first instance.'" Fairfield Financial Mortg. Group, Inc. v. Luca, No. 06 Civ. 5962, 2011 WL 3625589, at *2 (E.D.N.Y. Aug. 16, 2011).

B. As to Whether the Defendant Trotta's Opposition Papers May be Considered

As an initial matter, the Court must determine whether it may consider the Defendant Robert Trotta's opposition papers to the instant application for a preliminary injunction. According to the Plaintiff, Trotta has failed to file an answer to the verified complaint which was served upon him on September 7, 2012. (DE 9.) In addition, the Plaintiff has filed for a certificate of default as to Defendant Trotta (although it was rejected for noncompliance with the Local Rules), and has demonstrated his desire to move for a default judgment against him.

On the other hand, Defendant Trotta has taken the position that he is a federal employee because he was a member of the federal task force with the Federal Bureau of Investigation ("FBI") at the time of the incident. (See Declaration of Diane C. Leonardo, Exhibit "A," Letter dated September 28, 2012; see also Exhibit "B," Oath of Office dated February 27, 2012.) See Aikman v. Cnty. of Westchester, 691 F. Supp. 2d 496, 498 (S.D.N.Y. 2010) ("[S]tate and local law enforcement officers designated as federal task force members are treated as federal employees for the purposes of any federal tort liability statute . . . Courts within this Circuit have interpreted [5 U.S.C.] § 3374(c) to extend to civil rights actions, and consequently have treated deputized_officers as federal employees for purposes of such actions."). In this regard, AssistantUnited States Attorneys Diane C. Leonardo and Thomas A. McFarland have filed a notice of appearance and they are litigating this matter on Trotta's behalf.

The Plaintiff opposes the United States' representation that Detective Trotta was a federal task force member at the time of the incident alleged in the Complaint. (See Plaintiff's Objections, p. 2, n.1.) This is an issue that may ultimately need to be resolved, and is problematic for the reason that the Plaintiff has not effectuated proper service on the federal government and the Plaintiff has evidenced an intention to move for a default judgment against Trotta. Regardless, this issue has not yet been resolved, and due to the time sensitive nature of the present motion, the Court will determine the merits of the Plaintiff's objections while taking into consideration Defendant Trotta's opposition. Contrary to the Plaintiff's assertion, any request for a default judgment was not considered by Judge Boyle and thus is not presently before the Court in the context of this Order.

If the Plaintiff still wishes to pursue his request that a default judgment be entered against the Defendant Trotta, he is directed to file a memorandum of law by January 31, 2013, not to exceed ten pages, explaining the basis for this position. He must do so prior to filing a second request for a certificate of default. The Defendant Trotta will be permitted to submit an opposition by February 21, 2013, also not to exceed ten pages. Any reply, to be filed by March 7, 2013, should not exceed five pages.

C. As to the Plaintiff's Objections

The Plaintiff objects to Judge Boyle's Report and Recommendation on several grounds. The Court will address each objection in turn.

First, Smith takes issue with the Report's introduction. Specifically, he objects to the Report framing the motion as limited to only seeking return of seized property. Smith contendsthat the motion is broader, as it also seeks "[p]reliminary and permanent injunctive relief in favor of [the P]laintiff enjoining application of federal and state law on Shinnecock Indian Reservation lands." (Motion at 4.) However, the introduction of the Report is just that—a general overview of the requested relief. The introductory statements do not equate with Judge Boyle's findings and/or recommendations. Therefore, this objection is one of form over substance and thus the Court dismisses it as irrelevant. To the extent that this specific request for injunctive relief affected Judge Boyle's actual findings and/or recommendations, the Court will address those contentions further below.

Second, the Plaintiff has put forth objections to the portion of the Report's entitled "Background." He asserts that the Background does not contain the more detailed facts of the traffic stop that were pled in the verified complaint and does not mention any documentary factual evidence submitted by the Plaintiff, such as the Bill of Lading showing the shipment of the cigarettes to the Shinnecock Smoke Shop on Shinnecock Indian Territory (Ex. A), or the invoices itemizing the shipment in the Bill of Lading. (DE 17.) However, the Court does not see any error in Judge Boyle's characterization of the facts in the Background sectio...