Washington v. Broome County District Attorney's Office et al

Filing 25

SUMMARY ORDER - That the Order and Report-Recommendation (Dkt. No. 12) is ADOPTED in its entirety. That Washington's motion for summary judgment filed on October 7, 2020 (Dkt. No. 8) is DENIED. That Washington's complaint (Dk t. No. 1) is DISMISSED WITH PREJUDICE AND WITHOUT LEAVE TO REPLEAD to the extent that it alleges claims against PDO based on actions taken by its employees for performing traditional functions as counsel to Washington in the underlying state court criminal proceedings; and DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO REPLEAD to the extent that it alleges (1) a due process claim against DAO, and (2) equal protection and/or fabrication claim(s) against Endicott Police. That Washi ngton's motion for summary judgment filed on December 2, 2020 (Dkt. No. 14) is DENIED AS MOOT. That Washington may file an amended complaint within thirty (30) days of the date of this Summary Order. That, if Washington files a timely am ended complaint, the Clerk shall forward it to Judge Lovric for review. That, if Washington does not file a timely amended complaint, the Clerk shall enter judgment without further order of the court. Notice of Compliance Deadline 5/28/2021, Case Review Deadline 6/3/2021). Signed by Senior Judge Gary L. Sharpe on 4/28/2021. (Copy served via regular mail)(jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
MALCOLM WASHINGTON,
Plaintiff,

3:20-cv-1099
(GLS/ML)

v.
BROOME COUNTY DISTRICT
ATTORNEY’S OFFICE et al.,
Defendants.
________________________________
SUMMARY ORDER
The above-captioned matter comes to this court following an Order
and Report-Recommendation (R&R) by Magistrate Judge Miroslav Lovric,
duly filed on November 24, 2020. (Dkt. No. 12.) Following fourteen days
from the service thereof, the Clerk has sent the file, including any and all
objections filed by the parties herein. Plaintiff pro se Malcolm Washington
filed timely objections to the R&R. (Dkt. No. 13.) For the reasons that
follow, the R&R is adopted in its entirety, Washington’s motion for summary
judgment, (Dkt. No. 8), is denied, and Washington’s complaint, (Compl.,
Dkt. No. 1), is dismissed with leave to replead.
Washington commenced this civil rights action pursuant to 42 U.S.C.
§ 1983 against defendants Broome County District Attorney’s Office (DAO),

Endicott City Police Department (hereinafter “Endicott Police”), and
Broome County Public Defender’s Office (PDO), asserting (1) a claim of
denial of due process against DAO for withholding Brady material; and (2)
a claim of denial of equal protection against Endicott Police for creating
false accusatory instruments and forging a warrant. 1 (See generally
Compl.)
Prior to initial review, Washington moved for summary judgment. 2
(Dkt. No. 8.) After granting in forma pauperis status, Judge Lovric
conducted an initial review of the complaint pursuant to 28 U.S.C.
§§ 1915(e) and 1915A, as well as a review of the motion for summary
judgment, and issued the R&R, which recommends dismissal with leave to
replead with respect to Washington’s claims against DAO and Endicott
Police, and without leave to replead insofar as Washington brings claims
against PDO “based on actions taken by [its] employees for performing
traditional functions as counsel.” (Dkt. No. 12 at 16-17.)
Before entering final judgment, this court routinely reviews all report

1

Notably, PDO does not appear to be a party to either claim brought by Washington,
and it is unclear whether its exclusion from the claims was a mere oversight.
2

Subsequent to the R&R, Washington filed a second motion for summary judgment.
(Dkt. No. 14.) Consistent with the court’s adoption of the R&R, which dismisses the complaint
in its entirety, as noted below, the motion for summary judgment is denied as moot.

2

and recommendation orders in cases it has referred to a magistrate judge.
If a party has objected to specific elements of the magistrate judge’s
findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No.
Civ. 904CV484, 2006 WL 149049, at *3 (N.D.N.Y. Jan. 18, 2006). In cases
where no party has filed an objection, or only vague or general objections
have been filed, this court reviews the findings and recommendations of
the magistrate judge for clear error. See id. at *5.
In objecting to the R&R, Washington states that he is in “complete
disagree[ment]” with it, and cites to various cases, as well as a state court
filing related to his claims. (Dkt. No. 13.) Indeed, Washington does not
object to any specific element of Judge Lovric’s findings, and, thus, his
objections are general and subject to review only for clear error. See
Almonte, 2006 WL 149049 at *4. The court has carefully considered the
R&R, and finds no clear error in Judge Lovric’s thorough analysis, which
squarely addresses the issues with Washington’s complaint and provides
multiple, appropriate reasons for dismissal. Accordingly, the R&R is
adopted in its entirety.
Accordingly, it is hereby
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ORDERED that the Order and Report-Recommendation (Dkt. No. 12)
is ADOPTED in its entirety; and it is further
ORDERED that Washington’s motion for summary judgment filed on
October 7, 2020 (Dkt. No. 8) is DENIED; and it is further
ORDERED that Washington’s complaint (Dkt. No. 1) is DISMISSED
WITH PREJUDICE AND WITHOUT LEAVE TO REPLEAD to the extent
that it alleges claims against PDO based on actions taken by its employees
for performing traditional functions as counsel to Washington in the
underlying state court criminal proceeding; and DISMISSED WITHOUT
PREJUDICE AND WITH LEAVE TO REPLEAD to the extent that it alleges
(1) a due process claim against DAO, and (2) equal protection and/or
fabrication claim(s) against Endicott Police; and it is further
ORDERED that Washington’s motion for summary judgment filed on
December 2, 2020 (Dkt. No. 14) is DENIED AS MOOT; and it is further
ORDERED that Washington may file an amended complaint 3 within
thirty (30) days of the date of this Summary Order; and it is further

3

Any proposed amended complaint must be a wholly integrated and complete
pleading that does not rely upon or incorporate by reference any pleading or document
previously filed with the court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d
Cir. 1994). This means that any proposed amended complaint cannot merely refer back to
Washington’s previous complaint.

4

ORDERED that, if Washington files a timely amended complaint, the
Clerk shall forward it to Judge Lovric for review; and it is further
ORDERED that, if Washington does not file a timely amended
complaint, the Clerk shall enter judgment without further order of the court;
and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
Washington in accordance with the Local Rules of Practice.
IT IS SO ORDERED.
April 28, 2021
Albany, New York

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