Bey v. Fernandez et al

Filing 28

ORDER denying 27 Motion to Stay: For the reasons stated in the attached order, Plaintiff's motion to stay this action is denied. If and when Plaintiff successfully exhausts his claims against DHS, Plaintiff may move in the ordinary course fo r permission to amend his complaint to add DHS as a defendant. In the meantime, pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997), the Court directs the U.S. Attorneys Office toprovide the proper service address for Defendants Fernan dez and Holt by June 21, 2017. The Court also respectfully requests that Magistrate Judge Tiscione coordinate with the U.S. Marshals Service to serve a summons and a copy of the Amended Complaint (Dkt. 20) on Defendants Fernandez and Holt. Ordered by Judge Pamela K. Chen on 5/31/2017. (Chivers, Jeffrey)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X
TEHUTI BAT’Z ELOHIM BEY,
a/k/a ZACKARY HOWARD BLACK,

NOT FOR PUBLICATION

Plaintiff,
MEMORANDUM & ORDER
Case No. 15-cv-7237 (PKC)

- against MICHAEL FERNANDEZ and JAMES HOLT,
Defendants.
X
PAMELA K. CHEN, United States District Judge:

On October 7, 2015, Plaintiff Tehuti Bat’z Elohim Bey (“Plaintiff”) filed this pro se action
in the United States District Court for the Northern District of California. By Order dated
December 16, 2015, the action was transferred to this Court. (Dkt. 4.) By order dated March 2,
2016, the Court dismissed Plaintiff’s complaint without prejudice, for failing to state a claim,
pursuant to, inter alia, 28 U.S.C. § 1915A. (Dkt. 16.) By order dated April 12, 2016, the Court
granted Plaintiff’s motion for reconsideration of the Court’s dismissal order and instructed Plaintiff
to file an amended complaint.
On June 13, 2016, Plaintiff filed an amended complaint (Dkt. 20), in which he alleges that
his constitutional rights were violated by two U.S. Department of Homeland Security (“DHS”)
officials, Defendants Michael Fernandez and James Holt.1 The thrust of Plaintiff’s amended
complaint is that, in the course of investigating and aiding the prosecution of an alleged
drug-selling conspiracy, Fernandez and Holt made false statements and fabricated evidence that

1

Plaintiff’s original complaint identified “Kevin Trowel” and a “John Doe” as defendants
(Dkt. 1 at 1), but his amended complaint names Fernandez and Holt as the only defendants
(Dkt. 20 at 3).

caused Plaintiff to be falsely arrested and imprisoned on charges related to the distribution of
Methylone (a.k.a. “Molly”), a Schedule I controlled substance. (See Dkt. 20.) As the Court
explained in its March 2, 2016 Order (Dkt. 16), the Court understands Plaintiff to be asserting a
private action for damages against Fernandez and Holt in their individual capacities pursuant to
the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
On July 15, 2016, the Court granted Plaintiff’s application to proceed in forma pauperis,
with respect to the Amended Complaint, and summonses were issued as to Defendants Fernandez
and Holt. (Dkts. 21, 22.) The summonses instructed the U.S. Marshals Service to make service
at the U.S. Department of Homeland Security in Washington, DC. (Dkt. 22.) On December 9,
2016, the summonses were returned unexecuted, with a note stating that DHS had refused to accept
service on behalf of Fernandez and Holt and advised that Fernandez and Holt would need to be
served personally. (Dkts. 23-24.) DHS did not provide addresses where Fernandez and Holt could
be served. (Ibid.)
On December 13, 2016, Plaintiff filed a motion to amend his complaint a second time in
order to add DHS as a defendant in this action. (Dkt. 25.) The Court granted Plaintiff’s motion
on December 21, 2016, and instructed Plaintiff to file a second amended complaint within sixty
days of the order. (Dkt. 26.) The Court further instructed Plaintiff that his second amended
complaint should be labeled as the “Second Amended Complaint,” “will completely replace the
original complaint and the first amended complaint,” and “will be reviewed for sufficiency under
Fed. R. Civ. P. 8 and 28 U.S.C. § 1915(e)(2)(B) before service will be ordered.” (Dkt. 26.)

2

On February 7, 2017, instead of filing a Second Amended Complaint as the Court had
instructed, Plaintiff filed a motion to stay this action pending the resolution of an administrative
claim that Plaintiff alleges he commenced with DHS on November 21, 2016. (Dkt. 27.) Plaintiff
asserts that this action should be stayed because Plaintiff cannot proceed against DHS in federal
court until he has exhausted his administrative claim pending before DHS. (Dkt. 27 ¶ 8.)
This Court has broad authority to grant a stay of proceedings as part of “control[ling] the
disposition of cases on its docket with economy of time and effort for itself, counsel, and for
litigants.” Landis v. North Am. Co., 299 U.S. 248, 254 (1936). Plaintiff argues that this action
should be stayed so that he can prosecute his purported claims against DHS, Fernandez, and Holt
“all in one forum at one time.” (Dkt. 27 ¶ 8.) According to Plaintiff, he will have exhausted his
administrative claim against DHS “[when DHS] resolves the FTCA administrative claim which is
still open, pending and unresolved, or being either settled, rejected, or the passage of 6 month time
from the date the claim was served.” (Id.)
The Court denies Plaintiff’s motion. Although there is some logic to Plaintiff’s request to
stay this action, the Court finds that further delay in this action is unwarranted.

Plaintiff

commenced this action on October 7, 2015, now more than eighteen months ago. (Dkt. 1.) As of
the date of this order, Plaintiff has made no progress toward prosecuting his claims against
Defendants Fernandez and Holt—indeed, those Defendants have not even been served with
process. (See Dkts. 23-24.) Given these circumstances, the Court finds that further delay is
unwarranted. If and when Plaintiff successfully exhausts his claims against DHS, Plaintiff may
move in the ordinary course for permission to amend his complaint to add DHS as a defendant. In
the meantime, the Court will direct the U.S. Marshals Service to serve a summons and a copy of

3

the Amended Complaint (Dkt. 20) on Defendants Fernandez and Holt2, and this action will proceed
in the ordinary course as to those two Defendants.
CONCLUSION
For the reasons stated above, Plaintiff’s motion to stay this action is denied. If and when
Plaintiff successfully exhausts his claims against DHS, Plaintiff may move in the ordinary course
for permission to amend his complaint to add DHS as a defendant. In the meantime, pursuant to
Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997), the Court directs the U.S. Attorney’s Office to
provide the proper service address for Defendants Fernandez and Holt by June 21, 2017. The
Court also respectfully requests that Magistrate Judge Tiscione coordinate with the U.S. Marshals
Service to serve a summons and a copy of the Amended Complaint (Dkt. 20) on Defendants
Fernandez and Holt.

SO ORDERED.
s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: May 31, 2017
Brooklyn, New York

2

In light of DHS’s refusal to accept service for Defendants Fernandez and Holt
(Dkts. 23-24), the Court, pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997), directs the
U.S. Attorney’s Office to provide the proper service address for Defendants Fernandez and Holt
by June 21, 2017. The U.S. Attorney’s Office need not undertake to defend or indemnify this
individual at this juncture. This Order merely provides a means by which this individual may be
identified and properly served.
4