McKeever v. Nassau County et al

Filing 108

ADOPTION ORDER ADOPTING REPORT AND RECOMMENDATION; For the stated reasons, IT IS HEREBY ORDERED that Plaintiff's Objections are OVERRULED, the R&R (ECF No. 104) is ADOPTED with the foregoing modification, Defendants' motions to dismiss ( ECF Nos. 61, 66, 77, 83) are GRANTED in their entirety, and Plaintiff's claims against Nassau County, Singas, Gurrier, Kalaydijan, Murack, Carroll, Stadtmiller, Delaney, Martin, and Allegheny County are DISMISSED WITH PREJUDICE; IT IS FURTHER OR DERED that, because Plaintiff's surviving claims against Ross and Mineola are inextricably intertwined with and premised upon the same factual allegations as the now-dismissed claims against the Nassau County Defendants, Martin, the PA/DA Defend ants, and Allegheny County, on or before October 14, 2022, Plaintiff is ORDERED TO SHOW CAUSE, in writing, why his remaining claims against Ross and Mineola should not be dismissed with prejudice. Plaintiff is WARNED that his failure to timely compl y with this Order to Show Cause will lead to the dismissal of the Second Amended Complaint WITH PREJUDICE for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b); IT IS FURTHER ORDERED that Defendant Ross is directed to file a res ponse to Plaintiff's Order to Show Cause submission on or before October 21, 2022; and IT IS FURTHER ORDERED that Defendants serve a copy of this Adoption Order upon Plaintiff forthwith and file proof of such service on ECF on or before September 9, 2022. So Ordered by Judge Joanna Seybert on 9/7/2022. (Valle, Christine)

Case 2:17-cv-04996-JS-SIL Document 108 Filed 09/07/22 Page 1 of 16 PageID #: 2496

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
VICTOR McKEEVER,
Plaintiff,
-against-

ADOPTION ORDER
17-CV-4996(JS)(SIL)

MADELINE
SINGAS,
BRITTANY
R.
GURRIER, LAUREN KALAYDIJAN, MARY
MURACK, DOROTHY J. MARTIN, KRISTIN
C.
ROSS,
STEVEN
STADTMILLER,
PATRICK DELANEY, PATRICK CARROLL,
COUNTY OF NASSAU, INCORPORATED
VILLAGE OF MINEOLA, NEW YORK,
COUNTY
OF
ALLEGHENY,
PENNSYLVANIA,
and
CITY
OF
PITTSBURGH, PENNSYLVANIA,
Defendants.
--------------------------------X
APPEARANCES
For Plaintiff:
Victor McKeever, pro se
607 Wandless Street
Pittsburgh, Pennsylvania

15219

For Defendants
County of Nassau,
Madeline Singas,
Brittany R.
Gurrier, Lauren
Kalaydijan, Mary
Murack, and Patrick
Carroll:
Laurel R. Kretzing, Esq.
Office of the Nassau County Attorney
1 West Street
Mineola, New York 11501
For Defendants
Steven Stadmiller
and Patrick
Delaney:

Joseph Gerald Heminger, Esq.
Brucker & Porter
180 Fort Couch Road, Suite 410
Pittsburgh, Pennsylvania 15241

Case 2:17-cv-04996-JS-SIL Document 108 Filed 09/07/22 Page 2 of 16 PageID #: 2497

For Defendant
Kristin C. Ross:

For Defendant
Dorothy Martin:

For Defendant
County of
Allegheny,
Pennsylvania:

Valerie Singleton, Esq.
Office of the Attorney General New York State
200 Old Country Road, Suite 240
Mineola, New York 11501
Alexander Thomas Korn, Esq.
PA Office of Attorney General
Civil Law Division, Litigation Section
15th Floor, Strawberry Square
Harrisburg, Pennsylvania 17120

John A. Bacharach, Esq.
Allegheny County Law Department
300 Fort Pitt Commons
445 First Avenue
Pittsburgh, Pennsylvania 15219

For Defendant
Incorporated
Village of Mineola,
No appearance.
New York:
SEYBERT, District Judge:
Victor

McKeever

(“Plaintiff”),

proceeding

pro

se,

commenced this civil rights action against the Nassau County
Defendants, 1 the PA/DA Defendants, 2 Dorothy Martin (“Martin”), the
County of Allegheny (“Allegheny County”), the Village of Mineola,
New York (“Mineola”), and Kristin C. Ross (“Ross”).

(See Second

The Nassau County Defendants are comprised of: County of Nassau
(“Nassau County”), Madeline Singas (“Singas”), Brittany Gurrier
(“Gurrier”), Lauren Kalaydijan (“Kalaydijan”), Mary Murack
(“Murack”), and Patrick Carroll (“Carroll”).
1

The PA/DA Defendants are comprised of: Steven
(“Stadtmiller”) and Patrick Delaney (“Delaney”).
2

2

Stadtmiller

Case 2:17-cv-04996-JS-SIL Document 108 Filed 09/07/22 Page 3 of 16 PageID #: 2498

Am. Compl. (“SAC”), ECF No. 19.)

On June 16, 2022, Magistrate

Judge Steven I. Locke issued his Report and Recommendation (“R&R”)
regarding motions to dismiss filed by the Nassau County Defendants,
Martin,

the

PA/DA

Defendants,

generally R&R, ECF No. 104.)

and

Allegheny

County. 3

(See

In the R&R, Judge Locke recommended

granting Defendants’ motions in their entirety.

(See id. at 39.)

On July 5, 2022, Plaintiff filed objections to the R&R, to which
Defendants did not respond.

(See Obj., ECF No. 107.) 4

For the

following reasons, Plaintiff’s objections are OVERRULED, the R&R
is

ADOPTED

with

one

modification

as

set

forth

below,

and

Defendants’ motions to dismiss are GRANTED.
FACTUAL BACKGROUND
The Court presumes the parties’ familiarity with the
factual

background

as

set

forth

in

Judge

incorporates his summary herein by reference.
Generally,

Plaintiff’s

claims

revolve

Locke’s

R&R

and

(See R&R at 5-9.)

around

his

arrest

in

Pennsylvania and subsequent extradition to New York, which was
based upon an arrest warrant obtained by Defendants Singas and
Murack for crimes Plaintiff allegedly committed in Nassau County.
Unless otherwise stated, when the Court refers to “Defendants,”
the Court is referring to all Defendants that filed a motion to
dismiss. The only Defendants who did not file such a motion are
Ross and Mineola.
3

The Court’s citation to page numbers in Plaintiff’s objections
are to the numbers the pages are automatically assigned by
ECF -- not to the pagination indicated by Plaintiff.
4

3

Case 2:17-cv-04996-JS-SIL Document 108 Filed 09/07/22 Page 4 of 16 PageID #: 2499

PROCEDURAL BACKGROUND
Plaintiff initiated this action on August 23, 2017 and
has

amended

the

operative

September 21, 2020.

premised

statutory

upon:

twice,

most

recently

on

(See Compl., ECF No. 1; First Am. Compl

(“FAC”), ECF No. 17; SAC.)
are

pleading

Plaintiff’s claims against Defendants

(1) violations

extradition

rights

of

pursuant

his
to

constitutional
42

U.S.C.

and

§ 1983;

(2) conspiracy to violate his extradition rights pursuant to 42
U.S.C. § 1985; (3) malicious abuse of process pursuant to 42 U.S.C.
§ 1983; (4) conspiracy to maliciously abuse process pursuant to
42 U.S.C. § 1985; and (5) racial discrimination pursuant to Title
VI of the Civil Rights Act of 1964 (“Title VI”).

(See Compl.;

FAC; SAC.) In addition to those claims, which are asserted against
all Defendants, Plaintiff raises various Monell claims against
Nassau County, Allegheny County, and Mineola; a Section 1983 claim
for failure to intervene against Carroll; and a defamation claim
against Singas.

(See Compl.; FAC; SAC.)

Thereafter, motions to dismiss were filed by Martin, the
Nassau County Defendants, the PA/DA Defendants, and Allegheny
County. (See Martin Mot., ECF No. 61; Nassau County Defs. Mot.,
ECF No. 66; PA/DA Defs. Mot., ECF No. 77; Allegheny County Mot.,
ECF No. 83.)

Plaintiff opposed the motions.

64, 65, 80, 81.)

(See Opp’n, ECF Nos.

The Court then referred Defendants’ motions to

4

Case 2:17-cv-04996-JS-SIL Document 108 Filed 09/07/22 Page 5 of 16 PageID #: 2500

Judge Locke on September 13, 2021.

(See Sept. 13, 2021 Elec.

Order.) 5
Judge Locke issued his R&R on June 16, 2022, recommending
that Defendants’ motions be granted and the SAC be dismissed with
prejudice against them. To begin, Judge Locke found that the Court
lacks personal jurisdiction over Martin and the PA/DA Defendants,
all of whom are based in Pennsylvania.

(See R&R at 16-19.)

Not

only did Plaintiff fail to properly serve Allegheny County, Judge
Locke

found

sufficient

Plaintiff

contacts

failed

with

New

jurisdiction over the County.

to

plead

York

to

that
confer

(Id. at 19-22.)

the

County

lacks

has

personal

Moreover, Judge

Locke concluded Plaintiff’s claims against the County are timebarred.

(Id. at 19-22.)
Next, Judge Locke found that Plaintiff’s claims against

Martin, the PA/DA Defendants, and the Nassau County Defendants are
barred by collateral estoppel because Plaintiff fully litigated
the issues presented in this case against those defendants during
his extradition proceeding in Pennsylvania state court.

(Id. at

23-24.)

In addition to these four motions, the Court also referred a
motion to dismiss filed by the City of Pittsburgh, Pennsylvania
(“Pittsburgh”), who was originally a named defendant in this case.
After the Court’s referral order was entered, Plaintiff
voluntarily withdrew his claims against Pittsburgh, mooting its
motion to dismiss. (See Mot. to Withdraw, ECF No. 89; Sept. 21,
2021 Elec. Order.)
5

5

Case 2:17-cv-04996-JS-SIL Document 108 Filed 09/07/22 Page 6 of 16 PageID #: 2501

Judge

Locke

causes of action.

then

considered

Plaintiff’s

individual

Plaintiff’s Section 1983 and 1985 claims, which

challenge the processes by which he was extradited, are defective
as a matter of law.

(Id. at 24-26.)

The Constitution’s provision

regarding extradition, Article 4, Section 2, is implemented by
18 U.S.C. § 3182, which omits details regarding the mechanisms to
effect extraditions.

(Id. at 26.)

Due to this omission, many

states created “their own procedural safeguards for the benefit of
the accused.”

(Id.)

give

a

rise

to

“[W]hile violations of these safeguards may

cause

of

action

for

false

arrest

or

false

imprisonment in the state whose law was breached, a [Section] 1983
action is an inappropriate avenue to seek a remedy.”
26-27.)

Moreover,

individual

right

18

U.S.C.

against

§ 3182

extradition

does
nor

not

(Id. at

“create[]

provide[]

a

an

legal

predicate” upon which a plaintiff may base a Section 1983 or 1985
claim.

(See id. at 27 (citing Powell v. Saratoga County, No. 18-

CV-1166, 2019 WL 1253026, at *3 (N.D.N.Y. Mar. 19, 2019)).)
As

to

Plaintiff’s

Title

VI

claim,

which

is

for

discrimination based upon his “race, color, and [s]tatus as a
felon,”

Judge

Locke

found

that

Plaintiff

“alleged

no

facts

regarding how Defendants intentionally discriminated against him.”
(Id. at 28.)

In addition to failing to support his Title VI claim

in the SAC, Judge Locke also noted that Plaintiff did “not once,

6

Case 2:17-cv-04996-JS-SIL Document 108 Filed 09/07/22 Page 7 of 16 PageID #: 2502

in his nearly 70-page Opposition to Defendants’ Motion,” even
address this claim.
Judge
arguments.
immunity

(Id.)

Locke

then

addressed

Defendants’

immunity

He found that prosecutorial immunity and sovereign
shielded

the

PA/DA

Defendants,

Singas,

Gurrier,

Kalaydijan, Murack, and Carroll (id. at 29-33); and further found
that Martin and the PA/DA Defendants were protected by qualified
immunity (id. at 33-35).

Plaintiff’s remaining federal claim for

Monell liability against Nassau County and Allegheny County also
failed as a matter of law.

(Id. 35-37.)

Judge Locke concluded

that the SAC lacked specific factual allegations to show that the
Counties committed any unconstitutional acts pursuant to a policy,
practice or custom, or that the Counties failed to properly hire,
screen, retain, supervise, control, or discipline employees.
at 36.)

(Id.

In light of recommending dismissal of all of Plaintiff’s

federal claims against Defendants, Judge Locke then recommended
that the Court decline to exercise supplemental jurisdiction of
Plaintiff’s only state law claim for defamation against Singas.
(Id. at 37-38.)

As a final matter, Judge Locke recommended that

Plaintiff not be afforded an opportunity to replead his claims in
a third amended complaint, finding that “it is apparent at this
juncture that further amendment would be futile.”

7

(Id. at 38-39.)

Case 2:17-cv-04996-JS-SIL Document 108 Filed 09/07/22 Page 8 of 16 PageID #: 2503

On July 5, 2022, Plaintiff filed his objections to the
R&R. 6

No Defendants filed a response.
ANALYSIS

I.

Legal Standard
A district court “may accept, reject, or modify, in whole

or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C); see also FED. R. CIV. P. 72(b)(3).
The

district

however,

judge

where

a

must
party

evaluate
“makes

proper
only

objections

conclusory

de

or

novo;

general

objections, or simply reiterates [the] original arguments, the
Court reviews the Report and Recommendation only for clear error.”
Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008)
(quoting Barratt v. Joie, No. 96–CV–0324, 2002 WL 335014, at *1
(S.D.N.Y. Mar. 4, 2002)); FED. R. CIV. P. 72(b)(3).
II.

Discussion
The Court has reviewed Plaintiff’s objections to Judge

Locke’s

R&R

and

finds

them

to

be

“mere

reiterations

of

the

arguments in [the] original papers that were fully considered, and
rejected, by” Judge Locke.

Rizzi v. Hilton Domestic Operating

In the R&R, Judge Locke warned that any objections must be filed
within 14 days of receipt of the R&R. (R&R at 39.) Defendants
served Plaintiff with the R&R by first-class mail on June 17, 2022
(see Proofs of Service, ECF Nos. 105 & 106), and Plaintiff’s
objections, dated July 2, 2022, were received by the Court on July
5, 2022.
In light of Plaintiff’s receipt of the R&R on June
20, 2022, the Court considers the objections timely. (Obj. at 3
¶ 4.)
6

8

Case 2:17-cv-04996-JS-SIL Document 108 Filed 09/07/22 Page 9 of 16 PageID #: 2504

Co., Inc., No. 18-CV-1127, 2020 WL 6253713, at *2 (E.D.N.Y. Oct.
23, 2020). 7

Thus, the Court reviews Judge Locke’s analysis for

clear error and finds none; however, the Court finds it must
exercise supplemental jurisdiction over Plaintiff’s defamation
claim for the reasons set forth below.

Accordingly, the R&R is

adopted in its entirety with the exception of this modification. 8
For the sake of completeness, the Court reviews the R&R
de novo.
arguing

Plaintiff objects to the R&R as being contrary to law,
that

Defendants

violated

the

Extradition Clause and 18 U.S.C. § 3182.

U.S.

Constitution’s

(See Obj. at 3-5.)

To

begin, the Court agrees with Judge Locke that Plaintiff does not
have a cognizable constitutional claim based upon the Extradition
Clause,

which

consequently

warrants

dismissal

of

Plaintiff’s

In his objections, Plaintiff argues that he never alleged “a
Second Amendment Complaint,” but rather his claims arise under the
Fourth, Fifth, Eighth, and Fourteenth Amendments. (Obj. at 3-4).
It appears that Plaintiff conflated the R&R’s references to the
SAC (or Second Amended Complaint) as being references to a claim
arising under the Second Amendment. Neither this Court nor Judge
Locke has interpreted Plaintiff’s pleadings to assert such a claim.
7

The Court notes that Judge Locke also recommended denying with
prejudice Plaintiff’s premature motion to strike Defendant
Martin’s motion to dismiss.
(R&R at 11 n.4.)
Nowhere in
Plaintiff’s objections does he challenge the denial of his motion
to strike. As such, the Court reviews this aspect of the R&R for
clear error because it is not required to conduct a de novo review
under these circumstances.
Culberth v. Town of E. Hampton New
York, No. 18-CV-4796, 2020 WL 2537263, at *2 (E.D.N.Y. May 19,
2020) (citing Rodriguez v. Perez, No. 09-CV-2914, 2012 WL 3288116,
at *1 (E.D.N.Y. Aug. 9, 2012)). Accordingly, the Court concurs
with Judge Locke’s recommendation, and the motion to strike is
DENIED WITH PREJUDICE.
8

9

Case 2:17-cv-04996-JS-SIL Document 108 Filed 09/07/22 Page 10 of 16 PageID #: 2505

Section 1983 and 1985 claims.
92,

93

(E.D.N.Y.

1987)

See Giano v. Martino, 673 F. Supp.

(“[W]hile

a

violation

of

the

Uniform

Extradition Act ‘may give rise to a cause of action for false
arrest or false imprisonment in the asylum state, whose laws were
breached,’ such a violation does not normally give rise to a
deprivation of rights secured by the Constitution or laws of the
United States.” (quoting Raffone v. Sullivan, 436 F. Supp. 939,
941 (D. Conn. 1977))), aff’d, 835 F.2d 1429 (2d Cir. 1987); Hinton
v. Moritz, 11 F. Supp. 2d 272, 275 (W.D.N.Y. 1998) (dismissing
Section 1983 claim based upon extradition proceedings); see also
Powell v. Saratoga County, No. 18-CV-1166, 2019 WL 1253026, at *3
(N.D.N.Y. Mar. 19, 2019) (“Plaintiff does not have standing to
force his extradition because 18 U.S.C. § 3182 does not provide
for a private right of action.” (citing Johnson v. Buie, 312 F.
Supp. 1349, 1350-51 (W.D. Mo. 1970))).
Assuming arguendo that the SAC alleges a constitutional
violation

--

which

it

does

not

--

to

determine

whether

the

individual Defendants are entitled to qualified immunity, 9 the
Court would still need to consider whether the right at issue was

Although the County Defendants only raise a general argument as
to qualified immunity in their motion (see County Defs. Support
Memo, ECF No. 74, at 8-9), the Court considers the defense to be
sufficiently raised.
Notwithstanding, in addition to being
entitled to qualified immunity, the County Defendants are still
entitled to prosecutorial and sovereign immunity for the reasons
articulated by Judge Locke. (See R&R at 29-33.)
9

10

Case 2:17-cv-04996-JS-SIL Document 108 Filed 09/07/22 Page 11 of 16 PageID #: 2506

clearly established at the time of Defendants’ conduct.

Ashcroft

v. al-Kidd, 563 U.S. 731, 735 (2011). There is a split of authority
as to whether violations of state extradition laws can give rise
to constitutional claims, which leads the Court to conclude that
“it cannot be argued that the [D]efendants violated a ‘clearly
established’ right,” nor that “it was objectively unreasonable for
the [D]efendants to act as they did without knowing that they were
violating [Plaintiff’s] constitutional rights.”

See Muhammad v.

Gold, No. 05-CV-0146, 2007 WL 3088133, at *4 (D. Vt. Oct. 23, 2007)
(citing Raffone, 436 F. Supp. at 940).

Accordingly, the Court

agrees that Plaintiff’s Section 1983 and 1985 claims against
Singas, Guerrier, Kalaydijan, Murack, Carroll, Martin, and the
PA/DA Defendants must be dismissed.
Next, as to Plaintiff’s Title VI and Monell claims, the
Court agrees with Judge Locke that Plaintiff has not advanced any
sufficient, detailed allegations to prevent the dismissal of these
claims.

(See Obj. at 24, 26.)

With respect to the Title VI claim,

Plaintiff argues that “two John Doe officers . . . admitted to
Plaintiff that he was low hanging fruit, being [he is] a blackman
with a record,” and that the officers “did . . . Singas a favor by
coming to take [him] to New York” because Singas was “overzealous”
in light of her campaign for election to District Attorney.
at 25.)

(Obj.

The Court is unable to infer from these conclusory factual

contentions that Defendants acted with discriminatory intent or
11

Case 2:17-cv-04996-JS-SIL Document 108 Filed 09/07/22 Page 12 of 16 PageID #: 2507

motivation with respect to race.

Manolov v. Borough of Manhattan

Cmty. Coll., 952 F. Supp. 2d 522, 527 (S.D.N.Y. 2013) (citing Yusuf
v. Vassar Coll., 35 F.3d 709, 712-14 (2d Cir. 1994)).

As to

Plaintiff’s Monell claim, which he attempts to save through his
objections by advancing new, conclusory allegations not contained
in the SAC (see Obj. at 25-26), the claim must nevertheless be
dismissed since Plaintiff has not pleaded a viable constitutional
claim.
Last,

the

Court

must

address

Plaintiff’s

defamation

claim against Singas, which Judge Locke recommended that the Court
decline to exercise supplemental jurisdiction over.

At this

juncture, with the exception of this defamation claim, all other
claims

against

the

County

Defendants,

the

Allegheny County, and Martin are dismissed.

PA/DA

Defendants,

All that remains are

Plaintiff’s federal claims against Ross and Mineola, claims which
fall

within

the

Court’s

original

jurisdiction,

but

mirror

Plaintiff’s now-dismissed claims against the movants here.
The Second Circuit has held that “a district court may
not decline to exercise supplemental jurisdiction over state law
claims where federal claims remain against other defendants and
the state law claims ‘form part of the same case or controversy.’”
Anderson v. City of Mount Vernon, No. 09-CV-7082, 2018 WL 557903,
at *2 (S.D.N.Y. Jan. 23, 2018) (quoting Mejia v. Davis, No. 16CV-9706, 2018 WL 333829, at *7 (S.D.N.Y. Jan. 8, 2018)).
12

Thus, in

Case 2:17-cv-04996-JS-SIL Document 108 Filed 09/07/22 Page 13 of 16 PageID #: 2508

light of the surviving federal claims against Ross and Mineola,
the Court is not prepared to decline to exercise supplemental
jurisdiction over Plaintiff’s defamation claim against Singas, and
modifies the R&R on this basis.

See D.B. v. Montana, No. 20-CV-

1195, 2022 WL 1155248, at *3 (N.D.N.Y. Apr. 19, 2022) (citing 15A
Moore’s Federal Practice § 106.66[1] (2022); Oladokun v. Ryan, No.
06-CV-2330, 2011 WL 4471882, at *11 (S.D.N.Y. Sept. 27, 2011))
(cleaned up)).
Turning

to

Plaintiff’s

objections,

he

contends

Singas abandoned any defense to the defamation claim.
at 26-27.)

that

(See Obj.

Plaintiff’s argument, however, is unpersuasive because

Singas sought dismissal of this claim on statute of limitations
grounds in both her motion (County Defs. Support Memo, ECF No. 74,
at 6) and reply (County Defs. Reply, ECF No. 76, at 8).

As such,

her arguments against this claim are neither abandoned nor waived.
Turning to the merits, New York provides a one-year statute of
limitations for Plaintiff’s defamation claim against Singas. 10 See
Although New York General Municipal Law § 50-i provides a oneyear and 90-day statute of limitations for torts against municipal
defendants, this statute of limitations does not apply to torts
against municipal defendants in their individual capacities.
Linell v. New York City Dep't of Educ., No. 15-CV-5085, 2017 WL
880853, at *3 (E.D.N.Y. Mar. 3, 2017). Rather, C.P.L.R. § 215(3),
which provides a one-year statute of limitations, governs such
claims. Id. Here, Plaintiff’s defamation claim is against Singas
in her individual capacity only, which triggers C.P.L.R. § 215(3).
(See Dec. 21, 2017 Memorandum & Order, ECF No. 9, at 11 (dismissing
with prejudice Plaintiff’s claims against Singas in her official
capacity).)
10

13

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Deaton v. Napoli, No. 17-CV-4592, 2019 WL 156930, at *3 (E.D.N.Y.
Jan. 10, 2019) (first citing N.Y. C.P.L.R. § 215(3); then citing
McKenzie v. Dow Jones & Co., Inc., 355 F. App’x 533, 535 (2d Cir.
2009)).

The alleged defamatory statement here was made by Singas

on July 15, 2016 to the media.

(See SAC ¶ 20.)

As such, the one-

year statute of limitations began to run that same day, and the
instant case was not commenced until August 23, 2017, which is
more than one year later.

Accordingly, Plaintiff’s defamation

claim is untimely and DISMISSED WITH PREJUDICE.
The Court finds Plaintiff’s remaining objections to be
without merit and OVERRULES them.
As a final matter, the Court notes that Plaintiff seeks
entry of default judgment against both Ross and Mineola.
Obj. at 27-28.)

(See

Regarding Ross in particular, although Plaintiff

concedes Ross filed an Answer to the SAC on March 29, 2022 (see
Ross

Answer,

untimely.

ECF

No.

97),

Plaintiff

contends

the

Answer

is

Notwithstanding, Ross’s Answer is timely because Judge

Locke granted her an extension of time to file the answer, nunc
pro tunc, to March 29, 2022.

(See Mar. 15, 2022 Elec. Order.)

In

light of the timely filing of Ross’s Answer, the Clerk of Court
correctly denied Plaintiff’s request for a certificate of default
against Ross.

(See Mar. 23, 2022 Dkt. Entry.)

The only motion

for entry of a default judgment that is pending is Plaintiff’s
motion against Mineola, which remains sub judice.
14

(See Default

Case 2:17-cv-04996-JS-SIL Document 108 Filed 09/07/22 Page 15 of 16 PageID #: 2510

Mot., ECF No. 98.)

However, the Court is holding its ruling on

Plaintiff’s default motion in abeyance pending the submissions
contemplated below by the Court’s Order to Show Cause.
CONCLUSION
For

the

stated

reasons,

IT

IS

HEREBY

ORDERED

that

Plaintiff’s Objections are OVERRULED, the R&R (ECF No. 104) is
ADOPTED with the foregoing modification, Defendants’ motions to
dismiss (ECF Nos. 61, 66, 77, 83) are GRANTED in their entirety,
and Plaintiff’s claims against Nassau County, Singas, Gurrier,
Kalaydijan, Murack, Carroll, Stadtmiller, Delaney, Martin, and
Allegheny County are DISMISSED WITH PREJUDICE;
IT
surviving

IS

claims

FURTHER

ORDERED

against

Ross

and

that,

because

Mineola

are

Plaintiff’s
inextricably

intertwined with and premised upon the same factual allegations as
the now-dismissed claims against the Nassau County Defendants,
Martin, the PA/DA Defendants, and Allegheny County, on or before
October 14, 2022, Plaintiff is ORDERED TO SHOW CAUSE, in writing,
why his remaining claims against Ross and Mineola should not be
dismissed with prejudice.

Plaintiff is WARNED that his failure to

timely comply with this Order to Show Cause will lead to the
dismissal of the Second Amended Complaint WITH PREJUDICE for
failure to prosecute pursuant to Federal Rule of Civil Procedure
41(b);

15

Case 2:17-cv-04996-JS-SIL Document 108 Filed 09/07/22 Page 16 of 16 PageID #: 2511

IT IS FURTHER ORDERED that Defendant Ross is directed to
file a response to Plaintiff’s Order to Show Cause submission on
or before October 21, 2022; and
IT IS FURTHER ORDERED that Defendants serve a copy of
this Adoption Order upon Plaintiff forthwith and file proof of
such service on ECF on or before September 9, 2022.

SO ORDERED.

/s/_JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

September 7, 2022
Central Islip, New York

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