SILVA et al

Filing 96

ORDER & OPINION ADOPTING REPORT AND RECOMMENDATIONS: Accordingly, It is on this 16th day of February 2021, ORDERED that the Report is adopted it its entirety and Plaintiffs objections to the Report are OVERRULED; ORDERED that Defendants motions (DE [ 83], 84 ) for Summary Judgement are GRANTED; ORDERED that Plaintiffs motion to file additional exhibits is DENIED; ORDERED that the Clerk of the Court is directed to close this case. SEE ATTACHED ORDER FOR FURTHER DETAILS. So Ordered by Judge Sandra J. Feuerstein on 2/16/2021. (Cubano, Jazmin)

Case 2:18-cv-03648-SJF-SIL Document 96 Filed 02/17/21 Page 1 of 7 PageID #: 1930

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DAVID T. SILVA, GERROD T. SMITH, and
JONATHAN K. SMITH,
Plaintiffs,
-against-

ORDER AND OPINION
18-CV-3648 (SJF)(SIL)

BRIAN FARRISH, JAMIE GREENWOOD,
EVAN LACZI, NEW YORK STATE DEPARTMENT
OF ENVIRONMENTAL CONSERVATION,
SUFFOLK COUNTY DISTRICT ATTORNEY’S
OFFICE, and BASIL SEGGOS,
Defendants.
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FEUERSTEIN, District Judge:
Plaintiffs David Silva (“Silva”), Gerrod Smith (“Gerrod”), and Jonathan Smith
(“Jonathan”) (collectively, “Plaintiffs”) commenced this action alleging, inter alia, that
defendants 1 are responsible for a pattern of racially motivated criminal prosecutions against
them and interference with their alleged un-relinquished aboriginal and retained rights to fish
in the waters of Shinnecock Bay. On November 18, 2019, Defendants filed motions for
summary judgment as to Plaintiffs’ claims. See Motion, Docket Entry (“DE”) [83, 84].
Pending before the Court are Plaintiffs’ objections to the Report and Recommendation of the
Honorable Steven I. Locke, United States Magistrate Judge, dated May 27, 2020 (the “Report”),
see DE [89], recommending, inter alia, that the Court deny Plaintiffs’ motion seeking leave to

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Defendants Brian Farrish (“Farrish”), Evan Laczi (“Laczi”), Basil Seggos (“Seggos”),
New York State Department of Environmental Conservation (“NYSDEC”) will hereinafter be
referred to as the “State Defendants.” Jamie Greenwood (“Greenwood”) and Suffolk County
District Attorney’s Office will hereinafter be referred to as the “County Defendants.” All
defendants will be referred to collectively as “Defendants.”

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file additional exhibits (DE [86]) and grant the State Defendants’ and the County Defendants’
motions for summary judgement. (DE [83, 84].) For the reasons set forth below, the Report is
adopted in its entirety.
I.

STANDARD OF REVIEW

This 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). The parties may also
serve and file written objections to a report and recommendation of a magistrate judge within
fourteen (14) days after being served with a copy thereof. 28 U.S.C. § 636(b)(1); FED. R. CIV.
P. 72(b)(2). Any portion of such a report and recommendation to which a timely objection has
been made is reviewed de novo. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(3). However,
the Court is not required to review the factual findings or legal conclusions of the magistrate
judge as to which no proper objections are interposed. See Schoolfield v. Dep't of Corr., No.
91-CV-691, 1994 WL 119740, at *2 (S.D.N.Y. Apr. 6, 1994) (objections stating the magistrate
judge's decisions are wrong and unjust, and restating relief sought and facts upon which the
complaint was grounded, are conclusory and do not form specific basis for not adopting a report
and recommendation).
General objections or “objections that are merely perfunctory responses argued in an
attempt to engage the district court in a rehashing of the same arguments set forth in the original
papers will not suffice to invoke de novo review[.]” Owusu v. N.Y.S. Ins., 655 F. Supp. 2d 308,
312-13 (S.D.N.Y. 2009) (internal quotation marks, alteration, and citation omitted). Any
portion of a report and recommendation to which no specific timely objection is made, or to
which only general, conclusory or perfunctory objections are made, is reviewed only for clear
error. Owusu, 655 F. Supp. 2d at 312-13; see also Trivedi v. N.Y.S. Unified Court Sys. Office
of Court Admin., 818 F. Supp. 2d 712, 726 (S.D.N.Y. 2011) (“[W]hen a party makes only
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conclusory or general objections . . . the Court will review the Report strictly for clear error. . .
Objections to a Report must be specific and clearly aimed at particular findings in the magistrate
judge’s proposal.” (internal quotation marks and citation omitted; alterations in original)), aff’d
sub nom Seck v. Office of Court Admin., 582 F. App’x 47 (2d Cir. 2014).
II. PLAINTIFFS’ OBJECTIONS TO THE REPORT
A.

The Report correctly concludes that Silva’s claims are
precluded under the Younger abstention doctrine.

The Court reviews de novo Plaintiffs’ objection that the Younger abstention doctrine
bars Silva’s claims for injunctive relief. See Younger v. Harris, 401 U.S. 37 (1971). Plaintiffs
contend the Younger abstention doctrine does not apply because “Silva’s state appeal, taken to
Appellate Division, was involuntarily dismissed by Appellate Term on October 15, 2019. Then
the dismissal was vacated by Appellate Term on December 13, 2019, and abandoned at that
time.” (Plaintiffs’ Objections to the Report (“Plaintiffs’ Objections”), DE [90] at 8.) The Court
disagrees.
“[T]he considerations of comity and federalism which underlie Younger permit no
truncation of the exhaustion requirement merely because the losing party in the state court of
general jurisdiction believes that his chances of success on appeal are not auspicious.” Huffman
v. Pursue, Ltd., 420 U.S. 592, 610 (1975). Abandoning a seemingly “fruitless” appeal does not
equate to “exhausting . . . state appellate remedies.” Id. Plaintiffs may choose to ignore the
proposed path to a remedy provided by the Appellate Term in an order dated December 13, 2019
but doing so does not affect the result here—Younger abstention applies.
Plaintiffs further argue that the Report “erred in failing to find the bad faith exception
[to the Younger abstention doctrine] was not met[.]” (Plaintiffs’ Objections at 8.) Plaintiffs point
to the alleged “pattern of prosecution of Plaintiffs in violation of Defendants own policy CP-42,

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misrepresenting the conservation status of glass eels, and internal emails showing racial
profiling.” (Id.) Upon de novo review of the Report and consideration of the parties’ respective
objections and responses thereto, the Plaintiffs’ objections are overruled. This Court agrees with
the Magistrate Judge that Plaintiffs have not put forward sufficient evidence to establish “that the
state proceeding is motivated by a desire to harass or is conducted in bad faith.” Huffman, 420
U.S. at 611. The Report is adopted insofar as it finds that the Court lacks subject matter
jurisdiction under Younger to enjoin Silva’s criminal prosecution.
B.

The Ex Parte Young exception to the Eleventh
Amendment does not apply.

Plaintiffs object to the Magistrate Judge’s finding that the claims against the State
Defendants are barred by the Eleventh Amendment to the Constitution and that the Ex Parte
Young exception does not apply. (Plaintiffs’ Objections at 7-8.) Plaintiffs’ objections state that:
1) “[t]he Report wrongly determined Plaintiffs are . . . not seeking protection of a “use right””,
2) “the Report unhinged the plain and explicit language of the relief sought in Plaintiffs’
complaint... without drawing on any supporting facts from Dr. Strong’s reports . . . and then misapplied the law”, 3) “Plaintiffs’ fishing use right case is supported by language in Colonial Deeds
and other documents cited by Dr. Strong”, and 4) that the Magistrate Judge misapplied or failed
to apply Supreme Court precedent on which Plaintiffs rely. (Id. at 7-8.)
The above objections are conclusory, general objections that “attempt to engage [this
Court] in a rehashing of the same arguments set forth in the original papers.” Vega v. Artuz, No.
97-CV-3775, 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30, 2002). Accepting and reviewing
objections of this kind de novo “would reduce the magistrate's work to something akin to a
meaningless dress rehearsal.” Id. at *1 (citations and internal quotations marks omitted).

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Accordingly, Plaintiffs objections as to the applicability of the Ex Parte Young exception are
reviewed for clear error.
The Magistrate Judge correctly and thoroughly articulated in the Report the flaws with
Plaintiffs’ position: namely, that Plaintiffs in reality seek a declaration from this Court that New
York’s exercise of fee title remains subject to Plaintiffs’ and their tribes’ right of use. Having
found no clear error on the record, the Report is adopted insofar as it finds that the Ex Parte
Young exception to the Eleventh Amendment sovereign immunity does not apply to Plaintiffs’
claims against the NYSDEC or Farrish, Laczi, and Seggos in their official capacity.
C.

Gerrod and Jonathan lack standing.

The Report concludes that Plaintiffs lack standing to bring claims for injunctive and
declaratory relief. Plaintiffs object as follows: “[T]he Report overlooks vital evidence regarding
Defendants unmistakable intent to injure Plaintiffs.” (Plaintiffs Objections at 10.) Upon de novo
review and viewing the evidence in the light most favorable to Plaintiffs, the objection is overruled.
This Court is not persuaded by Plaintiffs’ claims that the email exchange between NYSDEC
employees concerning a New York Times article in any way evidences bad faith by Defendants.
(DE [84-12] at 182.) To the contrary, the emails demonstrate that the DEC was enforcing
regulations which it thought applied to all New Yorkers, “native or not”, and thus, evidence that
the DEC was not acting in bad faith. (Id.)
Nor does the holding in Unkechaug Indian Nation v. N.Y.S. Dep't of Envtl. Conservation,
No. 18-CV-1132, 2019 WL 1872952, at *1 (E.D.N.Y. Apr. 23, 2019) change the result of the
Report. As the Report correctly concludes, Unkechaug is distinguishable because it involves
plaintiffs who had an “articulated ... concrete plan” and a reasonable expectancy of prosecution in

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the future. (Id. at 6.) Plaintiffs have not articulated such a plan, here. The Court finds that
Plaintiffs lack standing to bring claims for injunctive and declaratory relief.
As to Plaintiffs’ proposed exhibits (DE [86]), the Report correctly concludes that the
January 22, 2020 press release and the map depicting St. Regis Mohawk Tribe’s territory are not
relevant. Plaintiffs’ request to file same is denied.
All remaining objections 2 to the Report are perfunctory in nature and reiterate arguments
made in opposition to Defendants’ motions for summary judgment, and thus, are reviewed for
clear error. Having found no clear error on the record, the Report of United States Magistrate
Judge Steven I. Locke dated May 27, 2020, is APPROVED, ADOPTED and RATIFIED by the
Court in its entirety.

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Namely, that: (1) Plaintiffs’ 42 U.S.C. §§ 1981 and 1982 claims against Farrish, Laczi,
and Seggos in their individual capacities are foreclosed by the doctrine of absolute prosecutorial
immunity, (2) the SCDA does not have a legal identity separate and apart from the municipality,
(3) Plaintiffs’ claims against Greenwood are barred by absolute prosecutorial immunity, Younger
abstention doctrine, and lack of standing, and (4) Plaintiffs’ claims against Greenwood are
construed as against the state and fail under Younger and for lack of standing.

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Accordingly,
It is on this 16th day of February 2021,
ORDERED that the Report is adopted it its entirety and Plaintiffs’ objections to the Report
are OVERRULED;
ORDERED that Defendants’ motions (DE 83, 84) for Summary Judgement are
GRANTED;
ORDERED that Plaintiffs’ motion to file additional exhibits is DENIED;
ORDERED that the Clerk of the Court is directed to close this case.

SO ORDERED.
/s/ Sandra J. Feuerstein
Sandra J. Feuerstein U.S.D.J.
United States District Judge

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