Philogene-Bey v. New York City Police Commissioner James P. O'Neill et al

Filing 49

MEMORANDUM AND ORDER, In line with the foregoing, pltff's appeal from the order of Judge Mann's imposing a stay of proceedings is dismissed. The Court certifies, pursuant to 28 USC sec. 1915(a)(3), that any appeal would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of any appeal. The Clerk of Court is directed to mail a copy of the order to pltff. (Ordered by Judge Eric N. Vitaliano on 5/05/2018) c/m (Galeano, Sonia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X

^'ooklyw om

James Philogene-Bey,
Plaintiff,

Memorandum & Order

-against-

17-CV-I486(ENV)
(RLM)

New York City Police Commissioner James P.
O'Neill, in his individual and official capacity.

Mayor Bill De Blasio, in his individual and official
capacity. The City of New York,New York City
Police Office Roman Rushtlion, New York City
Police Officer Lt. Lee Lapkeung, in his individual

and official capacity. New York City Police Officer
Sgt. Sandoval, in his individual and official
capacity. New York City Police Officer Sgt. Olsen,
in his individual and official capacity, and New

York City Police John Doe,in his individual and
official capacity.
Defendants.

VITALIANO,DJ.

In December 2017, Chief Magistrate Judge Roanne L. Mann entered an order granting a

stay ofthis civil case pending resolution ofa related state court criminal proceeding. Plaintiff
James Philogene-Bey has objected to Judge Mann's order. For the reasons that follow, his
objections are overruled.
Background

On March 16, 2017, Philogene-Bey filed a § 1983 complaint against various defendants,

raising false arrest and malicious prosecution claims relating to a traffic stop, subsequent arrest,

and open criminal case in Kings County Criminal Court. Dkt. No. 1. It was that open proceeding
that prompted defendants to seek a stay. Dkt. No. 37. After an initial conference before Judge
Mann, on November 1, 2017, Dkt. No. 39, defendants renewed their motion, offering the

VM

indictment resulting from facts at the core of Philogene-Bey's claims here. Dkt. No. 40 & 40-1.

In response, plaintiff filed a self-styled "Motion to Vacate Matters Related at Nisi Prius Court."
Dkt. No. 42. In her December 27, 2017, Memorandum and Order, Judge Mann granted the stay

and denied Philogene-Bey's motion to vacate. Dkt. No. 44. On February 1, 2018, plaintiff filed
a four page document, which the Court liberally construes as an appeal of Judge Mann's order
staying this action. Dkt. No. 45.
Discussion

When a magistrate judge has entered an order in a civil case, parties have 14 days to file

an appeal. 28 U.S.C. § 636(b)(1). Where a party has timely appealed and specifically pointed
out claimed errors, a district court reviews the order de novo. 4 B's Realty 1530 CR39, LLC v.

Toscano, 818 F. Supp. 2d 654,658(E.D.N.Y. 2011). Where an appeal to a non-dispositive order
is untimely, the appealing party has generally waived his right to object. Caidor v. Onondaga

Cry., 517 F.3d 601,604(2d Cir. 2008). Finally, where the contentions are conclusory or general,
a district court reviews the order for plain error. Toscano, 818 F. Supp. 2d at 659.

Philogene-Bey's appeal fails. It suffers from two fatal defects. First, his appeal was

untimely filed, some two weeks past the deadline to file. He has, therefore, waived his right to

appeal. Caidor,517 F.3d at 604. Second, if it is any consolation to him, even if the appeal was

timely or could be construed as such, Philogene-Bey's general non-specific claim of error in
Judge Mann's well-reasoned decision, which imposed a stay but did not dismiss the case, does

not pass muster. Whether under the applicable plain error review,see Toscano, 818 F. Supp. 2d
at 659, or under de novo review, there is no error. Consequently, his appeal is dismissed.
Conclusion

In line with the foregoing, plaintiffs appeal from the order of Judge Mann imposing a

stay of proceedings is dismissed.

The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal would not be
taken in good faith, and, therefore, informa pauperis status is denied for the purpose of any

appeal. See Coppedge v. United States^ 369 U.S. 438,444-45, 82 S. Ct. 917,920-21,8 L. Ed. 2d
21 (1962).

The Clerk of Court is directed to mail a copy of the order to plaintiff.
Dated: Brooklyn, New York
May 5, 2018

/S/ USDJ ERIC N. VITALIANO
ERIC N. VITALIANO

United States District Judge