Bristol et al v. Probation Department of Nassau County et al

Filing 71

ORDER ADOPTING REPORT AND RECOMMENDATIONS : IT IS HEREBY ORDERED that the Court adopts the well reasoned R&R in its entirety. Plaintiffs motion for partial summary judgment is therefore denied without prejudice to renewal once discovery is complete. The Court grants plaintiff leave to submit an Amended Complaint, which must be filed within thirty (30) days from the date of thisOrder. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purposeof any appeal.. Ordered by Judge Joseph F. Bianco on 9/25/2017. (Bollbach, Jean)cm by chambers

FILE O

IN CLERK'S OFF/CS
U.S. DISTRICT COURT e.o.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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MARCEL C. BRISTOL,

.$EP 25 2017

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LONG ISL.ANO OFFICe
Plaintiff,
ORDER
14-CV-6647 (JFB) (AKT)

-againstEDWARD SCHENK and COUNTY OF NASSAU,
Defendants.

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JOSEPH F. BIANCO, District Judge:
Before the Court is a Report and Recommendation ("R&R," ECF No. 65) from Magistrate
Judge Tomlinson advising the Court to deny pro se plaintiffs motion for partial summary
judgment1 against defendants pursuant to Federal Rule of Civil Procedure 56 ("Pl. 's Mot.," ECF
No. 51 ). For the reasons set forth below, the Court adopts the thorough and well-reasoned R&R
in its entirety and denies plaintiffs motion without prejudice to renewal at a later stage of this
action. In addition, the Court grants plaintiff leave to amend his complaint.

I. STANDARD OF REVIEW
A district judge may accept, reject, or modify, in whole or in part, the findings and
recommendations of the Magistrate Judge.

See Deluca v. Lord, 858 F. Supp. 1330, 1345

(S.D.N.Y. 1994); Walker v. Hood, 619 F. Supp. 372, 374 (S.D.N.Y. 1988). As to those portions
of a report to which no "specific written objections" are made, the Court may accept the findings
contained therein, as long as the factual and legal bases supporting the findings are not clearly
erroneous. See Fed. R. Civ. P. 72(b); Thomas v. Arn, 414 U.S. 140, 149 (1985). When a party

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As discussed below, although plaintiff entitled his motion as one for judgment on the pleadings, Magistrate Judge
Tomlinson construed plaintiff's motion to be one for partial summary judgment.

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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 to
the magistrate judge with instructions.").
II. BACKGROUND
In her R&R, Magistrate Judge Tomlinson recommends that the Court deny plaintiffs

motion without prejudice because it is procedurally improper. At the outset, she noted that,
"[a]lthough Plaintiff has styled his letter motion as one for 'Partial Judgment on the Pleadings,'
ostensibly pursuant to Rule 12(c), it appears Plaintiff is attempting to assert that he is entitled to
partial summary judgment in accordance with Rule 56 of the Federal Rules of Civil Procedure."
(R&R at 5.) That "assessment [was] based on Plaintiffs statements [in his motion] that 'the
evidence and law are no longer in dispute' and 'there is no triable issue of fact."' (Id. (quoting
PL 's Mot.).) After applying the appropriate standard of review, Magistrate Judge Tomlinson
concluded that, "[n]otwithstanding Plaintiffs desire to engage in summary judgment motion
practice, such a motion is premature at this stage of the litigation, particularly since discovery is
still ongoing." (R&R at 7.) She observed that "the Court has not received any competent
evidence demonstrating whether genuine issues of fact are indeed in dispute (or, in the alternative,
whether Plaintiff is entitled to partial summary judgment as a matter oflaw)," and that "even ifthe
Plaintiffs motion was ripe for review, it would nevertheless be procedurally improper since
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Plaintiff has not filed a Statement of Undisputed Facts in accordance with Local Civil Rule 56.1."
(Id. at 7-9.) Finally, Magistrate Judge Tomlinson found that "even if the Plaintiffs motion had

been properly filed, the sole substantive argument he advances in support of his motion"-namely,
that this Court had previously determined that plaintiffs claims were meritorious in a decision
dated March 8, 2016 (the "Memorandum & Order," ECF No. 37)-was "unpersuasive" because
the Memorandum & Order "did not weigh the factual evidence but considered only the legal
sufficiency of Plaintiffs Complaint-. that is, whether the allegations as set forth in the Complaint
adequately stated claims that were plausible on their face." (R&R at 11.)
Plaintiff thereafter filed timely objections to the R&R on August 17, 2017. ("Pl. 's Objs.,"
ECF No. 70.) For the reasons e!'plained below, the Court adopts Magistrate Judge Tomlinson's
R&R in its entirety.

III. DISCUSSION
In his objections, plaintiff does not contest Magistrate Judge Tomlinson's rec<;>mmendation
that the Court construe his motion as one for partial summary judgment,· nor does he dispute that
the motion is procedurally improper at this stage of the litigation. 2 (See generally Pl. 's Objs.)
Instead, he argues that, had Magistrate Judge Tomlinson been aware of the Supreme Court's recent
decision in·Nelson v. Colorado, 137 S. Ct. 1249 (2017), "[i]t is certainly unlikely ... [that] her
recommendation would [have] be[en] the same." (Id. at 1.) In addition, plaintiff reiterates the
arguments lie made in his motion with respect to the Memorandum & Order, averring that, based
on this Court's conclusions therein, "[i]t is not in dispute that the defendants attempted to justify
the retention of [plaintiffs] funds by tricks through a fake agreement which falsely alleged that

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Nevertheless, the Court has reviewed those recommendations de novo and agrees with Magistrate Judge Tomlinson 's
well-reasoned conclusions.

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plaintiff entered a guilty plea," and that "the defendants sought and obtained Plaintiffs custody on
the false pretense of a pending retrial in Nassau County which never took place due to numerous
legal barriers." (Id. at 1-2.) Thus, plaintiff objects to the portion of the R&R that determined
that the Memorandum & Order was "not tantamount to a ruling that suggests the defendants'
retention of the funds is per se unlawful." (Id. at 2.) He further contends that "no amount of
discovery can convalesce the defendants' comatose defense. Moreover, the defendants' delaying
tactics to evade discovery cast doubt on the very purpose of disclosures which they totally
ignored." (Id.) Plaintiffs arguments lack merit.
First, as Magistrate Judge Tomlinson correctly concluded, this Court has not yet considered
any factual evidence in this case. In the Memorandum & Order, the Court denied in part and
granted in part defendants' motion for judgment on the pleadings after determining, inter alia, that
plaintiff had failed to state a claim with respect to a "violation of his double jeopardy right, due
process right regarding his remand to [the Nassau County Correctional Center,] and due process
right regarding the alleged seizure of his personal property and money in 2009," but finding that
plaintiff had sufficiently pied a "due process claim regarding the alleged refusal to return his funds
in 2013, and [a] conditions of confinement claim." (Memorandum & Order at 12 (emphasis
added).) Moreover, "the Court liberally construe[d] [plaintiffs] complaint to allege a claim
against the County of Nassau for his prison conditions." (Id. at 8 n.5.) In other words, as the
R&R notes, the Memorandum & Order only assessed the legal sufficiency of plaintiffs pleadingthe Court did not, as plaintiff suggests, determine that the allegations therein are factually true. 3

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As the Memorandum & Order states, the Court must assume the veracity of plaintiffs allegations on a motion for
judgment on the pleadings-but only for the purpose of resolving that motion. (Memorartdum & Order at 4.)
Accordingly, the Court did not determine that defendants are fo fact liable to plaintiff in the Memorandum & Order.

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Further, in their December 30, 2016 answer to plaintiffs complaint, defendants the County of
Nassau and Edward Schenck deny the vast majority of plaintiffs allegations and raise numerous
affirmative defenses.

(See ECF No. 45.)

Whether or not any "amount of discovery can

convalesce the defendants' comatose defense" remains to be seen, and thus, the Court agrees with
Magistrate Judge Tomlinson that discovery on plaintiffs claims is required before summary
judgment motion practice can commence.
Accordingly, plaintiffs reliance on Nelson is misplaced.

There, the Supreme Court

invalidated a Colorado statute on due process grounds because it permitted the state to "retain[]
conviction-related assessments unless and until the prevailing defendant institute[d] a discrete civil
proceeding and prove[ d] her innocence by clear and convincing evidence" following vacatur of
her criminal conviction. 137 S. Ct. at 1252. The Court held that "Colorado may not retain funds
taken from [the petitioners] solely because of their now-invalidated convictions, for Colorado may
not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary
exactions." Id. at 1256 (citations omitted). However, unlike this action, Nelson involved a
complete factual record that enabled the Supreme Court to conduct an appellate review of the
statute at issue. Here, there are no facts before this Court-only

unsubst~ntiated

allegations-

and as a result, plaintiff is not entitled to partial summary judgment at this stage of the litigation.

IV. LEAVE TO AMEND
In his motion for partial summary judgment, plaintiff also requested leave to amend

hi~

complaint "to substitute his claim of double jeopardy for a wrongful and illegal detention claim."
(Pl.' s Mot. at 2.) Defendants opposed this request on statute of limitations and res judicata
grounds. (See Defs.' Opp'n, ECF No. 57, at 2.) However, Magistrate Judge Tomlinson did not
reach this issue because she narrowly construed the referral order from this Court as
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"encompass[ing] only Plaintiffs motion for partial judgment on the pleadings ...." (R&R at 4
n.2.) Accordingly, the Court has reviewed plaintiffs motion to amend de novo.
Leave to amend should be freely granted when justice so requires.

Fed. R. Civ. P.

15(a)(2). "This relaxed standard applies with particular force to prose litigants." Pangburn v.

Culbertson, 200 F.3d 65, 70 (2d Cir. 1999). Nevertheless, "[l]eave to amend, though liberally
granted, may properly be denied for: 'undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of allowance of the amendment, futility of amendment,
etc."' Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v.

Davis, 371 U.S. 178, 182 (1962)); see also Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122,
126 (2d Cir. 2008).
In light of plaintiffs pro se status and the fact that he has never amended his pleading in
this action, the Court will grant him leave to submit an amended complaint. Defendants argues
that any amendment would be futile. However, the Court cannot make that determination at this
time. In particular, as set forth in the Memorandum & Order, plaintiffs double jeopardy claim
arose from a 2013 appellate remand of his underlying criminal proceeding for a new trial
(Memorandum & Order at 5), and plaintiff commenced this action on November 10, 2014 (ECF
No. 1).

Thus, with respect to defendants' statute of limitations argument, plaintiffs false

imprisonment claim may be timely if it relates back to the filing of his original complaint. .See
Fed. R. Civ. P. 15(c)(l). In addition, although the Court dismissed plaintiffs double jeopardy
and due process claims relating to that 2013 remand in the Memorandum & Order (Memorandum
& Order at 5-6), plaintiffs motion does not indicate whether his proposed false imprisonment

claim pertains to the same transaction. Accordingly, it is not clear that res judicata-or, more
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appropriately, the· law of the case doctrine, see Johnson v. Holder, 564 F.3d 95, 99 (2d Cir. 2009)
{"The law of the case doctrine commands that when a. court has ruled on an issue, that decision
should ge·nerally be adhered to by that court in subsequent stages in the same ·case unless cogent
and compelling reasons militate otherwise." (citation omitted))-would bar that claim.
Nevertheless, should plaintiff submit an amended complaint, defendants may raise these
arguments again in a motion to dismiss.

Any amended complaint shall be clearly labeled

"Amended Complaint" and must be filed within thirty (30) days from the date of this Order.

V. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that the Court adopts the wellreasoned R&R in its entirety. Plaintiffs motion for partial summary judgment is therefore denied
without prejudice to renewal once discovery is complete. The Court grants plaintiff leave to
submit an Amended Complaint, which must be filed within thirty (30) days from the date of this
Order.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

S~

Dated:

'J(

September
2017
Central Islip, New York

ORD,f:REp.

ph F. Bianco
1ted States District Judge

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