Thomas v. Heid et al

Filing 12

MEMORANDUM-DECISION AND ORDER adopting 5 REPORT AND RECOMMENDATIONS.Dismissing Pltf's malicious prosecution claim against Defts Soares and Sharp and and also dismissing Pltf's slander and defamation claims against Defts Times Union and C lukey. Dismissing Pltf's Monell claim against Deft City of Albany. Pltf's malicious prosecution claims shall be allowed to proceed against Defts Cornell and Heid. Clerk shall issue Summonses and forward them, along with copies of the Complaint, GO 25, this Order, and the 5 R&R to the USM for service upon Defts Cornell and Heid. Signed by U.S. District Judge Mae A. D'Agostino on 4/12/18. (Copy served via regular mail)(sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
GAVIN C. THOMAS,
Plaintiff,
vs.

8:17-cv-01213
(MAD/DJS)

LARRY HEID, Detective, CHRISTOPHER
CORNELL, Detective, P. DAVID SOARES,
District Attorney, STEVEN M. SHARP,
District Attorney, TIMES UNION,
ALBANY POLICE DEPARTMENT,
JEREMY RUNDELL, Police Officer,
KESHIA CLUKEY, Times Union Publisher,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

GAVIN THOMAS
16-A-0095
Clinton Correctional Facility
P.O. Box 2000
Dannemora, New York 12929
Plaintiff, pro se
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Pro se Plaintiff Gavin Thomas ("Plaintiff"), an inmate in the custody of the New York
State Department of Corrections and Community Supervision, commenced this civil rights action
pursuant to 42 U.S.C. § 1983 on November 3, 2017, asserting claims arising out of an arrest on
September 22, 2014. See Dkt. No. 1. The complaint alleges constitutional violations against
Defendants Larry Heid, Christopher Cornell, P. David Soares, Steven M. Sharp, the Times Union,
the City of Albany, Jeremy Rundell, and Keshia Clukey. See id. at ¶¶ 3, 4.

Magistrate Judge Stewart conducted an initial review and issued a ReportRecommendation and Order recommending dismissal with prejudice of the following claims:
Plaintiff's false arrest claim against Defendant Rundell; Plaintiff's slander and defamation claims
against Defendants Times Union and Clukey as barred by the statute of limitations; and Plaintiff's
malicious prosecution claim against Defendants Soares and Sharp as barred by absolute
immunity. Dkt. No. 5 at 5, 9, 11. Magistrate Judge Stewart further recommended Plaintiff's
Monell claim against Defendant City of Albany be dismissed without prejudice for failing to
allege a custom or policy caused the alleged constitutional violation. Finally, Magistrate Judge
Stewart recommended that Plaintiff's malicious prosecution claims be allowed to proceed against
Defendants Cornell and Heid. Id. at 8-9. Plaintiff filed objections to the ReportRecommendation and Order on January 2, 2018. Dkt. No. 9. For the reasons stated below, the
Court adopts Magistrate Judge Stewart's Report-Recommendation and Order in its entirety.
II. BACKGROUND
As Plaintiff does not object to Magistrate Judge Stewart's recitation of the relevant
background facts, and because it is consistent with the record, the Court adopts the factual
background set forth in Magistrate Judge Stewart's Report-Recommendation and Order. See Dkt.
No. 5 at 3-5.
III. DISCUSSION
A.

Standard of Review
When a plaintiff seeks to proceed IFP, "the court shall dismiss the case at any time if the

court determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim
on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief." 28 U.S.C. § 1915(e)(2)(B). Although "the court has the duty to show liberality
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towards pro se litigants, . . . there is a responsibility on the court to determine that a claim has
some arguable basis in law before permitting a plaintiff to proceed with an action in forma
pauperis." Moreman v. Douglas, 848 F. Supp. 332, 333–34 (N.D.N.Y. 1994) (internal citations
omitted).
"[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d
652 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to
"make reasonable allowances to protect pro se litigants" from inadvertently forfeiting legal rights
merely because they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d
Cir. 1983)).
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After the appropriate review, "the 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).
A litigant's failure to file objections to a magistrate judge's report and recommendation,
even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to
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object to any purported error or omission in a magistrate judge's report waives further judicial
review of the point") (citation omitted). A pro se litigant must be given notice of this rule; notice
is sufficient if it informs the litigant that the failure to timely object will result in the waiver of
further judicial review and cites pertinent statutory and civil rules authority. See Frank v.
Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d
15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the report explicitly states
that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
B.

False Arrest Claim
Magistrate Judge Stewart correctly found that Plaintiff's claim for false arrest was barred

by the statute of limitations which had begun to run when Plaintiff was arraigned on September
23, 2014, and expired three years later on September 23, 2017. See Dkt. No. 5 at 7. Plaintiff filed
his complaint alleging false arrest on November 3, 2017, forty-one days after the statute of
limitations expired. Id. at 7. Plaintiff contends that the statute of limitations did not start to run at
the arraignment, but rather at the time he was charged, or in the alternative, the dismissal of the
charge against him. See Dkt. No. 9 at 1. The Supreme Court, however, has already rejected this
argument, holding that statute of "'[l]imitations begin to run against an action for false
imprisonment when the alleged false imprisonment ends.'" Wallace v. Kato, 549 U.S. 384, 389
(2007) (quoting 2 H. Wood, Limitation of Actions § 187d(4), p. 878 (rev. 4th ed. 1916)) (other
citation omitted). The Court further stated "petitioner's contention that his false imprisonment
ended upon his release from custody, after the State dropped the charges against him, must be
rejected. It ended much earlier, when legal process was initiated against him." Id. at 390.
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Plaintiff sets forth in his complaint that he was arrested and detained on September 22, 2014, and
was arraigned September 23, 2014. Dkt. No. 1 at 6-7. As such, Plaintiff's alleged false
imprisonment ended on September 23, 2014, and the statute of limitations expired on September
23, 2017, thus barring Plaintiff's claim. The Court therefore adopts Magistrate Judge Stewart's
recommendation that Plaintiff's false arrest claim be dismissed.
C.

Remainder of Plaintiff's Claims
Plaintiff does not object to the remainder of the Report-Recommendation and Order.

Having reviewed Magistrate Judge Stewart's December 6, 2017 Report-Recommendation and
Order and the applicable law, the Court finds no clear and error. The Court concludes that
Magistrate Judge Stewart correctly recommended that the Court dismiss Plaintiff's malicious
prosecution claim against Defendants Soares and Sharp, and Plaintiff's slander and defamation
claims against Defendants Times Union and Clukey. Magistrate Judge Stewart further correctly
recommended Plaintiff's Monell claim against Defendant City of Albany be dismissed without
prejudice, and Plaintiff's malicious prosecution claims be allowed to proceed against Defendants
Cornell and Heid.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Magistrate Judge Stewart's Report-Recommendation and Order is
ADOPTED in its entirety for the reasons set forth therein; and the Court further
ORDERS that Plaintiff's malicious prosecution claim against Defendants Soares and
Sharp, and Plaintiff's slander and defamation Claims against Defendants Times Union and Clukey
are DISMISSED with prejudice; and the Court further
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ORDERS that Plaintiff's Monell claim against Defendant City of Albany is DISMISSED
without prejudice; and the Court further
ORDERS that Plaintiff's malicious prosecution claims shall be allowed to proceed against
Defendants Cornell and Heid; and the Court further
ORDERS that the Clerk of the Court shall issue Summonses and forward them, along
with copies of the Complaint, a packet containing General Order 25, a copy of this MemorandumDecision and Order and Magistrate Judge Stewart's December 6, 2017 Report-Recommendation
and Order, to the United States Marshal for service upon Defendants Cornell and Heid.
Defendants Cornell and Heid shall file a formal response to the complaint in accordance with the
Federal Rules of Civil Procedure; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.1
IT IS SO ORDERED.
Dated: April 12, 2018.
Albany, New York

The Clerk of the Court is directed to terminate docket entry numbers seven (7) and
eleven (11) as pending motions. Plaintiff's submission simply clarifies an issue he previously
addressed in his submissions. Additionally, Plaintiff is directed that the time for Defendants to
object to the Report-Recommendation and Order expired on December 26, 2017 and they elected
to not file objections, as was their right.
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