Sylla v. Ruh

Filing 49

ORDER ADOPTING REPORT AND RECOMMENDATIONS: The R&R is adopted in its entirety, and plaintiff Sylla may file an amended complaint consistent with this order by 10/26/12. Summary judgment is granted as to plaintiff Nabe, and plaintiff Nabe is dismisse d as a plaintiff in this case. Summary judgment is granted as to plaintiff Sylla's 4 amendment claims. Plaintiffs motion for summary judgment is denied. In order for plaintiff Sylla to proceed in this action by attempting to allege a Bivens c laim or FTCA claim, plaintiff Sylla must file an amended complaint by 10/26/12. Failure to an amended complaint will result in the dismissal of this action with prejudice. If deft wishes to make a second motion for summary judgment after the filin g of the amended complaint, the Court will set a schedule for a second motion at the appropriate time. Doc #34 granted/denied in part; #35 denied; #37 denied. Ordered by Judge Joseph F. Bianco on 9/24/2012. (Bollbach, Jean) cm by chambers to pro se by fcm on 9/24/12

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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DAMANTANG SYLLA and
MOHAMED NOBE,

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SEP 2 :± 2012

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Plaintiffs,

ORDER ADOPTING REPORT
AND RECOMMENDATION
10-CV-3325 (JFB) (GRB)

-againstPETER RUH and other unknown agents from
the U.S. Postal Service,
Defendants.

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JOSEPH F. BIANCO, District Judge:
For the reasons set forth below, the Court adopts the Report and Recommendation, dated
August 30, 2012, without prejudice to the defendant filing another summary judgment if plaintiff
Damantang Sylla attempts to re-plead to allege a claim under Bivens v. Six Unknown Named Agents,
403 U.S. 399 (1971), or the Federal Tort Claims Act in an amended complaint. In the amended
complaint, plaintiffs should include any factual allegations related to the exhaustion, notice of claim,
and other requirements associated with these claims that were raised by defendant in his objections
to the R&R.

I. BACKGROUND
On July 15, 2010, plaintiff Sylla filed a complaint in this action. On September I, 2011, an
amended complaint was filed, adding plaintiff Nabe as a co-plaintiff. On November 23, 2011,
defendant filed a motion for summary judgment in this action. Plaintiffs filed their opposition on
December 30, 2011, and defendant filed his reply on January II, 2012. On January 26, 2012,
plaintiffs filed a motion for summary judgment. On February 15, 20!2and February 16, 2012, the
Court referred the motions for summary judgment to Magistrate Judge Gary R. Brown for a Report
and Recommendation.

On August 30, 2012, Magistrate Judge Brown issued a Report and Recommendation (the
"R&R'') recommending that "1. Defendant's motion for summary judgment be GRANTED as to
Nabe; 2. Defendant's motion for summary judgment be GRANTED as to Sylla' s Fourth Amendment
claims; 3. Plaintiffs motion for summary judgment be DENIED; and 4. This matter be permitted
to proceed against defendants as a Bivens action for purported Due Process violations against the
United States as a 4l(g) claim for money damages." (R&R at 8.) The R&R also states that "[a]ny
written objections to this Report and Recommendation must be filed with the Clerk of the Court
within fourteen (14) days of service of this Report. Any requests for an extension of time for filing
objections must be directed to the district judge assigned to this action prior to the expiration of the
fourteen (14) day period for filing objections. Failure to file objections within fourteen (14) days

will preclude further review of this report and recommendation either by the District Court
or the Court of Appeals." (!d. (emphasis in original).) On September 11, 2012, the defendant
requested additional time to file his objections, and on that date, the Court permitted defendant to
file his objections by September 21, 2012. On September 21, 2012, defendant filed his objections
to the R&R. To date, plaintiffs have not filed any objections.
II. STANDARD OF REVIEW
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. See 28 U.S.C. § 636(b)(l)(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

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to the magistrate judge with instructions."). Where clear notice has been given of the consequences
of failure to object, and there are no objections, the Court may adopt the report and recommendation
without de novo review. See Thomas v. Arn, 474 U.S. 140, 150 (1985) ("It does not appear that
Congress intended to require district court review of a magistrate's factual or legal conclusions,
under a de novo or any other standard, when neither party objects to those findings."); see also Mario
v. P & C Food Mkts .• Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Where parties receive clear notice of
the consequences, failure timely to object to a magistrate's report and recommendation operates as
a waiver of further judicial review of the magistrate's decision."). However, because the failure to
file timely objections is not jurisdictional, the district judge can still excuse the failure to object in
a timely manner and exercise its discretion to decide the case on the merits to, for example, prevent
plain error. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003)("[B]ecause the waiver rule is non
jurisdictional, we 'may excuse the default in the interests of justice."' (quoting Thomas v. Arn, 474
U.S. at 155)).
III. DISCUSSION
Defendant requests that the Court adopt the R&R' s recommendations to (1) grant defendant's
motion as to plaintiffNabe and on plaintiffSylla's Fourth Amendment Bivens claim, and (2) deny
plaintiffs' cross motion for summary judgment. (Def. 's Objections at 3.) Defendant objects to the
R&R's recommendation that plaintiff Sylla be permitted to proceed against defendant Ruh for
purported due process violations and against the United States for money damages under Federal
Rule of Criminal Procedure 4l(g). (!d.) For the reasons set forth below, the Court adopts the R&R
and will allow plaintiff Sylla to attempt to allege a plausible claim. However, if' plaintiff Sylla
intends to attempt to proceed, plaintiff Sylla must file an amended complaint alleging a due process
claim under Bivens v. Six Unknown Named Agents ofthe Federal Bureau ofNarcotics, 403 U.S. 388

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(1971) against defendant Ruh, and/or a claim under Federal Tort Claims Act against the United
States. Moreover, if such an amended complaint is filed, the Court will give defendant an
opportunity to file another summary judgment motion as to the amended complaint.
With respect to the Bivens Fifth Amendment due process claim against defendant, defendant
argues that plaintiffSyllacannot assert a Fifth Amendment due process claim because there was a
meaningful post-deprivation remedy available to him, including that plaintiff Sylla could have
petitioned for the vehicle's return under the "framework set forth in Fed. R. Crim. P. 4l(g) or 18
U.S.C. § 983(e)" while the vehicle was being held. (!d. at 5 (footnote omitted).) Defendant notes
that plaintiffSylla had notice ofNabe's prosecution, as he was a proposed suretor on Nabe's bail
application. (!d. at 5 n.l.) Defendant also asserts that plaintiff Sylla could have availed himself to
the Federal Tort Claims Act, 28 U.S. C.§§ 1346,2671-2680, which also provides a meaningful postdeprivation remedy. (Def.'s Objections at 5-6.) Defendant also states that even ifplaintiffSylla's
claim were to be construed as a Federal Tort Claim Act claim, plaintiffSylla has failed to exhaust
any applicable tort claims, having not filed a notice of claim with the appropriate federal agency, a
prerequisite to suit under the Federal Tort Claim Act. (Id. at 7-8.) Defendant further argues that the
statute oflimitations would now bar such a claim. (!d. at 8.) With respect to a possible claim under
Federal Rule of Criminal Procedure 41 (g) against the United States, defendant argues that money
damages are not available under Federal Rule of Criminal Procedure 41 (g) when the property is not
available for Ru1e 4l(g) return, and the United States has not consented to waive its sovereign
immunity for claims brought under Rule 4l(g). (Id. at 7.) Moreover, although such claims can be
brought under the FTCA, defendant again notes that such a claim carmot be sustained because of a
failure to exhaust.
Having reviewed de novo those portions of the R&R to which defendant objects, the Court

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adopts the R&R for the reasons stated therein. Although it appears that plaintiff may be unable to
pursue a Bivens claim or FTCA claim for the reasons set forth by defendant, the Court in its
discretion, and in an abundance of caution (especially in light ofSylla' s prose status), concludes that
plaintiff should be given the opportunity to attempt to allege a plausible claim under Bivens or the
FTCA, if Sylla wishes, and then defendant can make a summary judgment motion on any newly
asserted claims. Thus, plaintiff Sylla is given leave to re-plead with respect to any claim for due
process violations under Bivens against defendant Ruh and/or a Federal Tort Claim Act claim against
the United States. In the amended complaint, plaintiff Sylla must include factual allegations to
address the arguments raised by the defendants in their objections, and discussed in this Order,
including allegations related to the exhaustion, notice of claim, and other legal requirements
associated with these claims.
Having reviewed for clear error the other portions of the R&R, to which no party has not filed
any objections, the Court adopts the portions of the R&R (1) granting summary judgment with
respect to (a) plaintiffNabe's claims and (b) plaintiff Sylla's Fourth Amendment claims, and (2)
denying plaintiffs' motion for summary judgment.1

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Even under a de novo standard of review, the Court would adopt the R&R in its
entirety for the reasons set forth in the R&R.
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IV. CONCLUSION
IT IS HEREBY ORDERED, for the reasons set herein, that the R&R is adopted in its
entirety, and plaintiffSyllamay file an amended complaint consistent with this Order by October 26,
2012. Summary judgment is granted as to plaintiff Nabe, and plaintiff Nabe is dismissed as a
plaintiff in this case. Summary judgment is granted as to plaintiffSylla' sF ourth Amendment claims.
Plaintiffs' motion for summary judgment is denied. In order for plaintiff Sylla to proceed in this
action by attempting to allege a Bivens claim or FTCA claim, plaintiff Sylla must file an amended
complaint by October 26, 2012. Failure to file an amended complaint will result in the dismissal

of this action with prejudice. If the defendant wishes to make a second motion for summary
judgment after the filing of the amended complaint, the Court will set a schedule for a second motion
at the appropriate time.
SOQRDERED .

. BIANCO
ED STATES DISTRICT JUDGE
Dated: September 24,2012
Central Islip, New York

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