J. & W. Trading and Leasing Inc. et al v. State of New York et al

Filing 11

MEMORANDUM-DECISION AND ORDER: It is ORDERED that Magistrate Judge David E. Peebles' # 5 Report-Recommendation and Order is REJECTED IN PART only to the extent that it is recommended that Plaintiff James P. Mhina's claims against Beth Va n Doren be dismissed with prejudice, and Mhina may re-plead his claims against Beth Van Doren if he chooses to file an amended complaint. It is ORDERED that the Report-Recommendation and Order is ADOPTED in all other respects. It is ORDERED that the claims against the State of New York are DISMISSED WITH PREJUDICE, and that all other claims, except for those asserted against Defendants Anthony Collavita and David Burske, are DISMISSED WITHOUT PREJUDICE. It is further ORDERED that Plaintiffs Pete r F. Mhina, Marie K. Mhina, E.E.M, Kathy M. Mhina and J. & W. Trading and Leasing Inc. be terminated unless, within thirty (30) days of this Memorandum-Decision and Order, they sign the complaint, either file an application for leave to proceed IFP o r pay the filing fee, and with respect to J. & W. Trading and Leasing Inc., it appears in this action through counsel. Signed by Chief Judge Gary L. Sharpe on 7/08/2015. [Copy of this Memorandum-Decision and Order served upon non-electronic parties by regular mail.] (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
J. & W. TRADING AND
LEASING INC. et al.,
Plaintiffs,

5:15-cv-327
(GLS/DEP)

v.
STATE OF NEW YORK et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
James P. Mhina
Pro Se
P.O. Box 133
Syracuse, NY 13201
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiffs pro se James P. Mhina (“Mhina”), J. & W. Trading and
Leasing Inc., Peter F. Mhina, Marie K. Mhina, E.E.M., and Kathy M. Mhina
commenced this action against defendants the State of New York, County
of Onondaga, Beth Van Doren, City of Syracuse, Anthony Collavita, David
Burske, Woodhaven Apartments, Owner of Woodhaven Apartments,

Woodhaven Apartments Superintendent “John,” Key Bank, Key Bank Vice
President of Security, Citizens Bank, Citizens Bank Vice President of
Security “John Cruse,” Bank of America, and Amy Bidwell, alleging a host
of claims arising out of purportedly false criminal charges against Mhina.
(See generally Compl., Dkt. No. 1.) In a Report, Recommendation, and
Order (R&R) issued on May 18, 2015 upon initial review of the complaint,
Magistrate Judge David E. Peebles recommended that Mhina “be
permitted to proceed, solely on his own behalf, against two of the named
defendants, but that the remaining claims be dismissed.” (Dkt. No. 5 at 2.)
Pending are Mhina’s objections to the R&R. (Dkt. Nos. 6, 9.) For the
reasons that follow, the R&R is adopted in part and rejected in part.
II. Background
Plaintiffs1 commenced this action against defendants on March 20,
2015, alleging that Mhina was prosecuted and convicted of several
underlying offenses, which were overturned on appeal. (See generally
Compl.) Mhina further alleges that several of his bank accounts were

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As noted by Judge Peebles, although six plaintiffs are named in the caption of the
complaint, (Compl. at 1), each of the eight complaint forms submitted with this action lists only
James P. Mhina as plaintiff, (id. at 7, 11, 15, 19, 23, 27, 31), with the exception of one form,
which also names J. & W. Trading and Leasing Inc., (id. at 3).

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closed, which harmed his credit rating and violated his due process rights.
(Id.) Mhina sought leave to proceed in forma pauperis (IFP), (Dkt. No. 2),
which triggered initial review of his complaint pursuant to 28 U.S.C.
§ 1915(e). Upon this initial review, Judge Peebles granted Mhina’s IFP
application and recommended the dismissal of many, but not all, of the
asserted claims. (Dkt. No. 5.)
III. Standard of Review
Before entering final judgment, this court reviews report and
recommendation orders in cases it has referred to a magistrate judge. If a
party properly objects to a specific element 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. 904CV484GLS, 2006 WL 149049, at *3, *5 (N.D.N.Y. Jan. 18, 2006).
In those cases where no party has filed an objection, only vague or general
objections are made, or a party resubmits the same papers and arguments
already considered by the magistrate judge, this court reviews the findings
and recommendations of the magistrate judge for clear error. See id. at *45.
IV. Discussion
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In his R&R, Judge Peebles recommended that, with the exception of
Mhina’s claims against Collavita and Burske, all of plaintiffs’ claims be
dismissed. (Dkt. No. 5 at 23-24.) Specifically, Judge Peebles first noted
that, other than Mhina, none of the remaining individual plaintiffs have
signed the complaint, and thus recommended that they be dismissed
unless, within thirty days of this court’s ruling on the R&R, they: (1) sign the
complaint; and (2) either submit an application to proceed IFP or pay the
requisite filing fee. (Id. at 10-11.) Similarly, he recommended that J. & W.
Trading and Leasing Inc. be dismissed—because a corporation may not
represent itself pro se—unless the corporation appears through counsel
within thirty days of this court’s decision on the R&R. (Id. at 11.)
With respect to the claims asserted by Mhina, the only plaintiff who
has signed the complaint, Judge Peebles first recommended that the
claims against the State of New York and Van Doren be dismissed with
prejudice due to Eleventh Amendment immunity and absolute prosecutorial
immunity, respectively. (Id. at 12-13.) As to the County and the City,
Mhina failed to allege any policy or practice that would support a claim of
municipal liability. (Id. at 16-17.) Mhina also failed to allege the requisite
state action as against the apartment and bank defendants, because his
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“allegations [against them], which are . . . unclear, vague, and/or
conclusory, are insufficient to plausibly suggest the private defendants
acted under color o[f] state law.” (Id. at 14-16.) Regarding leave to
amend, aside from the claims against the State of New York and Van
Doren, Judge Peebles recommended that, despite these deficiencies, and
given Mhina’s pro se status, the claims be dismissed without prejudice, so
that Mhina may, if he so chooses, have an opportunity to file an amended
complaint in which he more clearly states his causes of action and
supports them with specific factual allegations.2 (Id. at 20-22.) Finally,
Judge Peebles recommended that Mhina’s complaint be liberally construed
as alleging false arrest and malicious prosecution claims against Collavita
and Burske, and that those claims survive this initial review. (Id. at 17-18.)
From what the court can discern from Mhina’s objections, he appears
to raise several additional allegations that are not contained in his
complaint, and, for the most part, fails to object to any specific portion of
the R&R. For example, he makes additional factual allegations regarding
his race discrimination claims, (Dkt. No. 6 at 8-9), and also attempts to

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Judge Peebles also noted that Mhina generally purports to assert claims under 42
U.S.C. §§ 1981 and 1988, but recommended that those claims be dismissed for failure to
adequately state a claim. (Dkt. No. 5 at 18-19 & n.10.)

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more clearly assert that many of the defendants conspired to violate his
constitutional rights, (id. at 38-40). These supplemental allegations, which
amplify the vague and conclusory allegations in the complaint, are not
properly considered on review of a magistrate judge’s R&R. See Smith v.
Hulihan, No. 11 CV 2948, 2012 WL 4928904, at *1 (S.D.N.Y. Oct. 17,
2012) (“[N]ew arguments and factual assertions cannot properly be raised
for the first time in objections to the R & R, and indeed may not be deemed
objections at all.”). Mhina also filed supplemental objections to the R&R, in
which he contends that he should be awarded attorney’s fees “after a
decission [sic] on the merits” and asserts that J. & W. Trading “should be
allowed to proceed without pay[ing] the filing fee.” (Dkt. No. 9 at 4.)
However, Mhina’s request for attorney’s fees is premature, as there has
been no decision on the merits, and, as noted by Judge Peebles, the
claims asserted by J. & W. Trading are subject to dismissal because a
corporation must appear through counsel. (Dkt. No. 5 at 11 (citing Jones
v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983).)
Mhina does, however, appear to specifically object to the R&R’s
recommendation that the claims against Van Doren be dismissed with
prejudice based on absolute prosecutorial immunity. (Dkt. No. 6 at 7-8, 166

17.) Specifically, Mhina asserts that prosecutors are not entitled to
absolute immunity when acting in an investigative capacity, as opposed to
when taking acts involved in a prosecutorial function, and thus Van Doren
is not necessarily entitled to absolute immunity. (Id.) The court construes
this as a specific objection, which merits de novo review. See Almonte,
2006 WL 149049, at *3, *5.
As an initial matter, the court agrees with Judge Peebles that, as
currently pleaded, all of the alleged acts attributed to Van Doren in the
complaint would likely entitle her to absolute immunity. (Dkt. No. 5 at 1213.) Mhina generally alleges that Van Doren “presented false evidence . . .
to the grand jury,” (Compl. at 5), and procured a “fraudulent arrest
warrant,” (id. at 8), thus resulting in a wrongful and malicious prosecution,
(id. at 8-9). The Second Circuit has held that similar conduct is covered by
absolute prosecutorial immunity. See Kent v. Cardone, 404 F. App’x 540,
543 (2d Cir. 2011) (“A prosecutor is absolutely immune with respect to
non-investigatory conduct before a grand jury.”); Pinaud v. Cnty. of Suffolk,
52 F.3d 1139, 1149-50 (2d Cir. 1995) (holding district attorneys absolutely
immune from claim for malicious prosecution and presentation of false
evidence to the grand jury, and noting that “the performance of functions . .
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. involved in . . . obtaining an arrest warrant . . . [is] covered by absolute
immunity”); Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994) (extending
absolute prosecutorial immunity to conspiracies to present false evidence
at trial and before the grand jury); Barr v. Abrams, 810 F.2d 358, 362 (2d
Cir. 1987) (noting that prosecutors are immune from suit based on their
actions in filing a criminal information and procuring an arrest warrant).
However, as alluded to by Mhina, while a prosecutor enjoys absolute
immunity for acts taken as part of a prosecutorial function, only qualified
immunity applies to acts taken by a prosecutor in an administrative or
investigative role. See Hill v. City of N.Y., 45 F.3d 653, 656 (2d Cir. 1995)
(“When acting as a criminal investigator, a prosecutor is accorded only the
qualified immunity ordinarily granted to the police function. Thus, whether
a [prosecutor] is or is not entitled to absolute immunity for his or her
conduct depends on the function being performed at that time.”); Barbera
v. Smith, 836 F.2d 96, 99 (2d Cir. 1987) (“[W]hen a prosecutor performs an
investigative or administrative function rather than a prosecutorial one,
absolute immunity is not available.”). In his objections, Mhina raises this
issue, and at least arguably contends that he can allege that Van Doren
was acting in an investigative role. (Dkt. No. 6 at 7-8, 14-17.) Accordingly,
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the court will not disturb Judge Peebles’ recommendation that Mhina’s
claims against Van Doren be dismissed at this juncture. However, given
the arguments raised in Mhina’s objections, and considering Mhina’s pro
se status, the court will, in an abundance of caution, dismiss these claims
without prejudice, so that Mhina may attempt to replead them in an
amended complaint if he chooses to file one.
The remainder of Mhina’s objections consist of vague, conclusory
assertions that his constitutional rights were violated and that defendants
breached a fiduciary duty owed to him. (Dkt. No. 6 at 18-38.) These
“objections” are unrelated—and do not specifically object—to any portion
of the analysis in the R&R, and thus are subject to review for clear error.
See Almonte, 2006 WL 149049, at *4-5. After thorough review of Mhina’s
objections, and the remainder of the recommendations in the R&R, the
court has found no clear error, and otherwise adopts Judge Peebles’
recommendations.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge David E. Peebles’ May 18, 2015
Report, Recommendation, and Order (Dkt. No. 5) is REJECTED IN PART
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only to the extent that it recommended that Mhina’s claims against Van
Doren be dismissed with prejudice, and Mhina may re-plead his claims
against Van Doren if he chooses to file an amended complaint; and it is
further
ORDERED that the R&R is ADOPTED in all other respects; and it is
further
ORDERED that the claims against the State of New York are
DISMISSED WITH PREJUDICE, and that all other claims, except for those
asserted against Collavita and Burske, are DISMISSED WITHOUT
PREJUDICE; and it is further
ORDERED that plaintiffs Peter F. Mhina, Marie K. Mhina, E.E.M,
Kathy M. Mhina, and J. & W. Trading and Leasing Inc. be terminated
unless, within thirty (30) days of the date of this Memorandum-Decision
and Order, they sign the complaint, either file an application for leave to
proceed IFP or pay the filing fee, and, with respect to J. & W. Trading and
Leasing Inc., it appears in this action through counsel; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.

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IT IS SO ORDERED.
July 8, 2015
Albany, New York

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