Lynch, Sr. v. Hanley et al

Filing 6

DECISION AND ORDER that Magistrate Judge Lovric's Report-Recommendation (Dkt. No. 5 ) is ACCEPTED and ADOPTED. Plaintiff's claims against Defendant Colonie Police Department are sua sponte DISMISSED with prejudice. To the extent that Plai ntiff's Complaint may be liberally construed as asserting claims against the Town of Colonie, those claims shall be DISMISSED with prejudice and without further Order of this Court UNLESS, within THIRTY (30) DAYS of the date of this Decision and Order, Plaintiff files an Amended Complaint curing the pleading defects identified in these claims, which shall again be reviewed by Magistrate Judge Lovric. Plaintiff's claim of deprivation of property under Fourteenth Amendment against all D efendants is sua sponte DISMISSED with prejudice. Plaintiffs claims for damages against Defendants Hanley and Doe in their official capacities, and Plaintiff's Fourth Amendment deprivation-of-property claim for injunctive relief against Defenda nts Hanley and Doe in their official capacities are sua sponte DISMISSED with prejudice. Plaintiff's remaining claims (i.e., his claim of false arrest under the Fourth Amendment against Defendants Hanley and Doe in their individual capacities, a nd his claim of deprivation of property under the Fourth Amendment against Defendants Hanley and Doe in their individual capacities) SURVIVE the Court's sua sponte review of his Complaint. The Clerk of Court shall forgo, for THIRTY (30) DAYS, is suing a Summons and forwarding it, along with copies of the Complaint, to the U.S. Marshal for service upon Defendants. Plaintiff take reasonable steps through discovery to name and serve the Defendant John Doe, or his claims against that Defendant shall be DISMISSED for failure to prosecute and/or failure to comply with an Order of the Court, pursuant to Fed. R. Civ. P. 41(b). Signed by Chief Judge Glenn T. Suddaby on 6/7/2021. (Copy served upon plaintiff via regular mail) (sal )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
MARK A. LYNCH, SR.,
Plaintiff,
1:21-CV-0025
(GTS/ML)

v.
POLICE OFFICER HANLEY; POLICE OFFICER
JOHN DOE; and COLONIE POLICE DEPT.,
Defendants.
_____________________________________________
APPEARANCES:
MARK A. LYNCH, SR.
Plaintiff, Pro Se
101 Sweeney Apartments
Troy, New York 12180
GLENN T. SUDDABY, Chief United States District Judge

DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by Mark A. Lynch, Sr.
(“Plaintiff”) against two police officers and the Colonie Police Department (“Defendants”), is
United States Magistrate Judge Miroslav Lovric’s Report-Recommendation recommending that
(1) certain of Plaintiff’s claims be sua sponte dismissed with prejudice (i.e., Plaintiff’s claims
against Defendant Colonie Police Department),1
(2) to the extent that Plaintiff’s Complaint may be liberally construed as asserting claims against
the Town of Colonie, those claims be sua sponte dismissed “without prejudice and with the
opportunity to amend [in this case],” (3) another of Plaintiff’s claims be sua sponte dismissed
1

Although this recommendation is omitted from the Report-Recommendation’s
“Recommended” paragraphs (on pages 16 and 17), it is contained in the body of the ReportRecommendation (on page 10). (Dkt. No. 5, at 10, 16, 17.)

“without prejudice [to refiling in state court] and without the opportunity to amend [in this case]”
(i.e., Plaintiff’s claim of deprivation of property under Fourteenth Amendment against all
Defendants), (4) certain of Plaintiff’s claims be sua sponte dismissed “with prejudice and
without leave to amend” (i.e., Plaintiff’s claims for damages against Defendants Hanley and Doe
in their official capacities, and Plaintiff’s Fourth Amendment deprivation-of-property claim for
injunctive relief against Defendants Hanley and Doe in their official capacities),2 and (5) the
remainder of Plaintiff’s claims be permitted to proceed (i.e., Plaintiff’s claim of false arrest
under the Fourth Amendment against Defendants Hanley and Doe in their individual capacities,
and his claim of deprivation of property under the Fourth Amendment against Defendants
Hanley and Doe in their individual capacities). (Dkt. No. 5.) None of the parties has filed an
objection to the Report-Recommendation, and the time in which to do so has expired. (See
generally Docket Sheet.)
After carefully reviewing the relevant papers herein, including Magistrate Judge Lovric’s
thorough Report-Recommendation, the Court finds that, with two very minor exceptions as
discussed in the following paragraphs, there is no clear-error in the Report-Recommendation.3
First, with regard to Magistrate Judge Lovric’s second above-described recommendation

2

Although the second claim in the parenthesis is omitted from the ReportRecommendation’s “Recommended” paragraphs (on pages 16 and 17), it is contained in the
body of the Report-Recommendation (on page 10). (Dkt. No. 5, at 9-12, 14, 16-17.)
3

When no objection is made to a report-recommendation, the Court subjects that reportrecommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes:
1983 Addition. When performing such a “clear error” review, “the court need only satisfy itself
that there is no clear error on the face of the record in order to accept the recommendation.” Id.;
see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995)
(Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s] report to which
no specific objection is made, so long as those sections are not facially erroneous.”) (internal
quotation marks omitted).
2

(i.e., that Plaintiff’s claims against Defendant Colonie Police Department be sua sponte
dismissed “without prejudice and with the opportunity to amend [in this case]”), the Court finds
that a more efficient way to proceed would be to conditionally dismiss these claims with
prejudice and without further Order of the Court unless, within thirty days of the date of this
Decision and Order, Plaintiff files an Amended Complaint curing the pleading defects identified
in these claims. This is because the Court finds that Plaintiff will not likely understand the
deadlines and procedures set forth in Fed. R. Civ. P. 15 and Local Rule 15.1, and a motion to file
a Second Amended Complaint might be filed if Plaintiff does not cure the defects in his
Amended Complaint.
Second, with regard to Magistrate Judge Lovric’s third above-described recommendation
(i.e., that Plaintiff’s claims of deprivation of property under Fourteenth Amendment against all
Defendants be dismissed “without prejudice [to refiling in state court] and without the
opportunity to amend [in this case]”) should instead be with prejudice. As an initial matter,
dismissals with prejudice are entirely permissible, and indeed are common, under Fed. R. Civ. P.
12(b)(6).4 Moreover, regardless of whether the dismissal of these claims is with or without
4

In the Second Circuit, the dismissal of an action for failure to state a claim upon which
relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) is viewed as an adjudication “on the
merits” of the action. See Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d
Cir. 1996) (“[A] dismissal under Rule 12(b)(6) is a dismissal on the merits of the action–a
determination that the facts alleged in the complaint fail to state a claim upon which relief can be
granted.”). As a result, a district court possesses the authority to dismiss an action with prejudice
for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).
See, e.g., Spain v. Ball, 928 F.2d 61, 62 (2d Cir. 1991) (“We believe the Title VII claim should
have been dismissed with prejudice. . . . Accordingly, the dismissal of Spain's complaint is
affirmed, and the judgment modified only insofar as it granted Spain leave to replead his Title
VII claim.”); Shockley v. Vermont State Colleges, 793 F.2d 478, 480-81 (2d Cir. 1986)

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prejudice (Dkt. No. 5, at 13, n.8), Plaintiff may continue to pursue his state court remedies for
the return of his property, because that pursuit arises under state law and not the Fourteenth
Amendment (as does the claim being dismissed herein with prejudice).
Other than these two very minor issues, the Court finds that Magistrate Judge Lovric
employed the proper standards, accurately recited the facts, and reasonably applied the law to
those facts. As a result, the Report-Recommendation is accepted and adopted.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Lovric’s Report-Recommendation (Dkt. No. 5) is
ACCEPTED and ADOPTED; and it is further
ORDERED that Plaintiff’s claims against Defendant Colonie Police Department are sua
sponte DISMISSED with prejudice; and it is further
ORDERED that, to the extent that Plaintiff’s Complaint may be liberally construed as
asserting claims against the Town of Colonie, those claims shall be DISMISSED with
prejudice and without further Order of this Court UNLESS, within THIRTY (30) DAYS of the
date of this Decision and Order, Plaintiff files an Amended Complaint curing the pleading
defects identified in these claims, which shall again be reviewed by Magistrate Judge Lovric;
and it is further
ORDERED that Plaintiff’s claim of deprivation of property under Fourteenth
(“Appellant’s pendent state contract claims were dismissed without prejudice while appellant’s
cause of action under Section 1983 was dismissed for failure to state a claim.”); Winters v. Alza
Corp., 690 F. Supp.2d 350, 357 (S.D.N.Y. 2010) (“A dismissal pursuant to Rule 12(b)(6) is, of
course, a dismissal with prejudice.”); Martens, 190 F.R.D. at 137 (“Granting a motion under
12(b)(6) would dismiss a claim with preclusive effect . . . .”).

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Amendment against all Defendants is sua sponte DISMISSED with prejudice; and it is further
ORDERED that Plaintiff’s claims for damages against Defendants Hanley and Doe in
their official capacities, and Plaintiff’s Fourth Amendment deprivation-of-property claim for
injunctive relief against Defendants Hanley and Doe in their official capacities are sua sponte
DISMISSED with prejudice; and it is further
ORDERED that Plaintiff’s remaining claims (i.e., his claim of false arrest under the
Fourth Amendment against Defendants Hanley and Doe in their individual capacities, and his
claim of deprivation of property under the Fourth Amendment against Defendants Hanley and
Doe in their individual capacities) SURVIVE the Court’s sua sponte review of his Complaint;
and it is further
ORDERED that the Clerk of Court shall forgo, for THIRTY (30) DAYS, issuing a
Summons and forwarding it, along with copies of the Complaint, to the U.S. Marshal for service
upon Defendants; and it is further
ORDERED that Plaintiff take reasonable steps through discovery to name and serve the
Defendant John Doe, or his claims against that Defendant shall be DISMISSED for failure to
prosecute and/or failure to comply with an Order of the Court, pursuant to Fed. R. Civ. P. 41(b).
Dated: June 7, 2021
Syracuse, New York

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