Marsalis v. Reed

Filing 137

MEMORANDUM AND ORDER denying Leventhal's objection 135 to the R&R, which recommended denying the motions to intervene and reopen the case 130 . Ordered by Judge Sandra L. Townes on 8/23/2017. C/M by chambers. (Barrett, C)

U.S. D

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

~

OURT FLO,

AUC 2 8 2017

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JAMEL MARSALIS,
Plaintiff,

MEMORANDUM AND ORDER

-against14-CV-5080 (SLT)(CLP)
CAPTAIN REED, et al.,
Defendant.
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TOWNES, United States District Judge:
In a report and recommendation dated June 14, 2017 (the "R&R"), Magistrate Judge
Cheryl L. Pollak denied a pro se motion brought by a non-party j ailhouse lawyer, Howard E.
Leventhal, who sought to reopen and intervene in this action in order to recover money which
plaintiff Jamel Marsalis ("Plaintiff') agreed to give him in exchange for his assistance in
prosecuting this action. Leventhal now objects to the R&R, essentially arguing that Judge Pollak
failed to rule upon his request for alternative relief: an order directing the Clerk of Court to file a
proposed complaint attached to his motion papers as an entirely new case. The Court now
considers de novo Leventhal's request for alternative relief and, for the reasons set forth below,
declines to grant that relief.

BACKGROUND
In August 2014, Plaintiff commenced this civil rights action against defendant Captain
Reed, alleging that Reed and other corrections officers assaulted him while plaintiff was
incarcerated on Rikers Island. Although Plaintiff first requested pro bono counsel in a letter
dated March 9, 2015, he proceeded pro se until mid-October 2016, when Brett Dignam of
Morningside Heights Legal Services, Inc. ("MHLS"), a legal clinic operated by the Columbia
University School of Law, filed a notice of appearance on his behalf. About six months later,

this action settled. The parties filed a stipulation and order of dismissal on March 31, 2017, and
the case was closed.
In mid-May 2017, Leventhal sent this Court a "Petition," seeking to reopen the case
pursuant Rule 60(b)(3) of the Federal Rules of Civil Procedure and to intervene in the action
pursuant to Rule 24(b)(2). The Petition also sought, in the alternative, an order directing the
Clerk of Court to accept for filing a civil complaint against Plaintiff, the City of New York, two
attorneys who represented the City in this action, MHLS, Dignam, a law student working under
Dignam, Columbia University, and various Doe directors and regents. A copy of Leventhal's
proposed complaint was attached to his Petition as Exhibit A.
The facts relating to Leventhal's motion to reopen and intervene were set forth in some
detail in the proposed complaint. According to that document, Leventhal, a "non-attorney," had
assisted his fellow inmate, Plaintiff, with this litigation both prior to and after the appearance of
Dignam. That assistance was allegedly rendered pursuant to an agreement in which Plaintiff
agreed to pay Leventhal ten percent of the money he recovered from the litigation or $50,000,
whichever was greater. Alleging that this action settled for $2,750,000, Leventhal seeks
$275,000 in "actual damages" plus punitive damages of $875,000. The proposed complaint
expressly states that "[tihis matter should be assigned to Judge Pollak." Petition, Ex. A, p. 2.
Although the Court did not formally refer Leventhal's Petition to the magistrate judge,
Judge Pollak obtained the parties' response to the Petition and filed the R&R, in which she
recommended denying Leventhal's motions. With respect to the motion to reopen, Judge Pollak
noted that Rule 60 affords relief to non-parties only if they are "sufficiently connected and
identified" with the action that the non-party seeks to reopen. R&R, p. 4 (quoting Baker v.
Gates, 638 F. App'x 25, 28 (2015)(summary order)). Judge Pollak held that Leventhal had failed
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to allege that he was sufficiently connected. Id., p. 5. With respect to the motion to intervene,
Judge Pollak noted (1) that Rule 24(b)(2)—the provision to which Leventhal cited—was
inapplicable because it governed intervention by a government officer or agency and (2) that
Rule 24(b)(1) required a prospective intervenor to have a claim that shared a "common question
of law or fact" with the main action. Id., pp. 5-6. The magistrate judge held that Leventhal's
proposed complaint did not share common questions of law or fact with Plaintiff's pleadings.

Id.,p.6.
Judge Pollak did not expressly address Leventhal's request for an order directing the
Clerk of Court to file his proposed complaint as a completely new action. However, in the
course of addressing the motion to reopen, she stated: "To the extent that Mr. Leventhal seeks to
bring a breach of contract action against [P]laintiff, he may do so in a separate state court action."

Id., p. 5. This statement implied that Leventhal did not have a basis for alleging federal
jurisdiction and/or a federal cause of action against the defendants named in the proposed
complaint.

Leventhal's Objections
Less than a week after Judge Pollak issued her R&R, Leventhal, proceeding pro Se, filed a
one-page letter entitled "Response to Report and Recommendation dated June 14, 2017." In that
document, Leventhal states that his only objection to the R&R is "that failing to proceed in the
way I have proposed will derogate judicial economy." After implying that it would have been
more efficient to reopen this case and to let him intervene, Leventhal renews his request that the
Court transmit his proposed complaint "to the Clerk with instructions to file [it] as a new case
.." Letter to Hon. Judge Cheryl Pollak, dated June 20, 2017. Leventhal tacitly acknowledges

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that he has not yet filed a application to proceed in forma pauperis, suggesting that the Clerk of
Court be directed to send him "the Court's form for IFP status ...." Id
DISCUSSION
The Federal Rules of Civil Procedure provide that "a district judge must determine de
novo any part of [a] magistrate judge's disposition that has been properly objected to." Fed. R.
Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(B). An objection filed by a pro se litigant must
be read broadly since "[i]t is well established that the submissions of a pro se litigant must be
construed liberally and interpreted 'to raise the strongest arguments that they suggest."
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon v.
Wright, 459 F.3d 241, 248 (2d Cir. 2006)). Upon de novo review, the Court may "accept, reject,
or modify the recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3).
Read liberally, Leventhal's "Response to [the] Report and Recommendation dated June
14, 2017" objects to Judge Pollak's failure to grant the alternative relief that he requested in his
Petition. Leventhal's submission specifically requests that the Court direct the Clerk to file his
proposed complaint as a new case. He further requests that the Clerk be directed to send him a
form for requesting in forma pauperis status.
The Court has considered these requests de novo and declines to grant the requested
relief. Federal law requires that a "court ... review, before docketing, ... a complaint in a civil
action in which a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity." 28 U.S.C. 1915A. Upon that review, the court must "identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the complaint--(1) is

frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks
monetary relief from a defendant who is immune from such relief." Id.
The § 1915A review is typically conducted by the district judge to whom the case is
assigned. Although Leventhal's proposed complaint asserts that "[t]his matter should be assigned
to Judge Pollak," Petition, Ex. A, p. 2, a magistrate judge cannot preside over a case unless all
parties to the action consent. See 28 U.S.C. § 636(c)(1). Cases are assigned to district judges
pursuant to the Guidelines for the Division of Business among District Judges in the Eastern
District (available at https://img.nyed.uscourts.gov/files/local rules/guidelinesdj .pdf). Under
Rule 50.3.1(e) of those Guidelines, "all pro se civil actions filed by the same individual" are
"deemed to be 'related' without further order of the court." Related cases are to be "assigned by
the clerk to the judge to whom was assigned the case with the lowest docket number in the series
of related cases." Id. Leventhal has filed at least two prior pro se civil actions in this district,
both of which have been assigned to Judge Cogan. See Leventhal v. Paes, 16-CV-3677
(BMC)(LB); Leventhal v. Paes, 17-CV-2496 (BMC)(LB). Accordingly, by operation of Rule

50.3.1(e), any new civil action filed by Leventhal pro se is likely to be assigned to Judge Cogan.
The Court is especially reluctant to direct the Clerk of Court to file Leventhal's proposed
complaint because the § 1915A review of his proposed complaint may determine that his
proposed action is frivolous. First, it is unclear from the proposed complaint that this Court has
subject-matter jurisdiction over the proposed action. The proposed complaint asserts that
Leventhal is "a resident and citizen of the State of Illinois" and that all of the proposed
defendants are citizens of the State of New York. However, the former assertion appears to be
based on the fact that Leventhal is currently incarcerated in Pekins, Illinois. Generally, a prisoner
retains his pre-incarceration domicile and courts presume "that a prisoner does not acquire a new

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domicile simply as a result of his incarceration in a state different from his pre-incarceration
domicile, because a prisoner is present in the state only as a result of compulsion and not an
intent to remain there indefinitely." Braten v. Kaplan, No. 07 Civ. 8498 (HB), 2009 WL 614657,
at *4 (S.D.N.Y. Mar. 10, 2009), aff'd, 406 F. App'x 516 (2d Cir. 2011). Although that
presumption is rebuttable, see Housand V. Heiman, 594 F.2d 923, 926 (2d Cir. 1979), the
proposed complaint does not allege facts suggesting that Leventhal has satisfied the prerequisites
for establishing a domicile in his place of incarceration.
Second, even assuming that Leventhal can allege a basis for federal jurisdiction, it is
unclear whether he has non-frivolous causes of action against any or all of the defendants named
in his proposed complaint. As MHLS correctly noted in its letter to Leventhal dated April 21,
2017, New York law makes it "unlawful for any natural person to practice ... as an
attorney-at-law or as an attorney and counselor-at-law for a person other than himself or herself
in a court of record in this state ... without having first been duly and regularly licensed and
admitted to practice law in the courts of record of this state, and without having taken the
constitutional oath." N.Y. Judiciary Law § 478. Under this statute, the practice of law includes
the giving of legal advice and preparing legal instruments, especially pleadings. See Spivak v.
Sachs, 16 N.Y.2d 163, 166, 263 N.Y.S.2d 953, 955 (1965); see also New York County Lawyers'
Ass'n v. Dacey, 28 A.D.2d 161, 165-66, 283 N.Y.S.2d 984, 989-91 (N.Y. App. Div. 1967), rev'd
on other grounds, 21 N.Y.2d 694, 287 N.Y.S.2d 422 (1967). Moreover, "[i]t is well-settled in
New York that '[a]s a matter of public policy, a contract to provide services in violation of [
478] is unenforceable.... "' Servidone Const. Corp. v. St. Paul Fire & Marine Ins, Co., 911 F.
Supp. 560, 576 (N.D.N.Y. 1995) (citing cases).

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Some, if not all, of the claims set forth in Leventhal's proposed complaint assume the
existence of an enforceable contract between Plaintiff and Leventhal. Before filing the proposed
action, Leventhal may wish to review the law relating to unauthorized practice of law. The Court
notes that Rule 11(b) of the Federal Rules of Civil Procedure authorizes the imposition of
sanctions upon even unrepresented litigants who bring frivolous claims in federal court.
CONCLUSION
For the reasons set forth above, the Court construes Leventhal's "Response to [the]
Report and Recommendation dated June 14, 2017" as objecting to Judge Pollak' s failure to grant
the alternative relief that he requested in his Petition: namely, an order directing the Clerk of
Court to file the proposed complaint attached as Exhibit A to his Petition as an entirely new case.
In light of this objection, the Court has considered de novo Leventhal's request for alternative
relief. Since 28 U.S.C. § 1915A requires that a court review a prisoner's complaint against a
governmental entity or its employees before the complaint is filed, and because this action is
likely to be assigned to Judge Cogan, the Court denies Leventhal's request. However, nothing in
this Memorandum and Order shall be construed as prohibiting Leventhal from filing the
proposed complaint on his own or from contacting the Pro Se Office at this Courthouse if he
wishes to obtain forms for filing pro se complaints and for requesting permission to proceed in
forma pauperis.

SO ORDERED.
/s/ Sandra

L. Townes

United States District Court
Dated: August 23, 2017
Brooklyn, New York

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