Koltun v. Berry et al

Filing 234

ORDER ADOPTING REPORT AND RECOMMENDATION for 170 Motion to Dismiss, filed by Joseph Ryan, Langdon C Chapman, David Darwin, Francis D. Phillips II, Garry Cooper, Kenneth T. Jones, David Hoovler, Carl Dubois, 186 Motion to Dismiss, filed by Thomas Naffy, Joseph Cortes, Daniel C Cameron, Aaron Weaver, Michael Ferrara, Muraax Davis, Nicolas Valentine, 201 Motion to Dismiss,, filed by Rudy Simmons, Jeffrey Berry, Joseph D'Amico, B. Harold Ramsey, Nicolas DeRosa, 230 Report and Recommendations 203 Motion to Dismiss filed by Glen Plotsicy, ESG. On November 7, 2016, Magistrate Judge Francis issued a R&R that the defendants' motions to dismiss the amended complaint be granted. On November 21, 2016, the Court received Koltun's objections to the R&R. (As further set forth in this Order.) At best, Koltun's remaining conclusory objections reiterate arguments that Magistrate Judge Francis considered and rejected. The Court therefore reviews t he November 7, 2016 R&R for clear error. Finding none, the Court adopts the R&R in full. Accordingly, the defendants' motions to dismiss are granted. The amended complaint is dismissed, with prejudice. The Clerk of Court is directed to enter judgment and close this case. (Signed by Judge Paul A. Crotty on 2/3/2017) Copies Mailed By Chambers (cf)

USDCSDNY

DOCUMENT

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ELFC'TRONICALLY FILED
DOC II: 234
DATEFILED: 2/3/2017

-------

------------------------------------------------------------)(
VICTOR KOLTUN,

13 Civ. 1612 (PAC) (JCF)

Plaintiff,

ORDER ADOPTING REPORT
AND RECOMMENDATION

-againstJEFFREY BERRY, et al.,

Def endants.

------------------------------------------------------------)(
HONORABLE PAUL A. CROTTY, United States District Judge:

Pro se plaintiff Victor Koltun brings this action pursuant to 42 U.S.C. §§ 1983 and
1985(3) for alleged violations of his constitutional rights in the course of his arrest and criminal
prosecution for murder in New York state court. He names as defendants his former courtappointed attorneys, officers of the City ofNewburgh Police Department and the New York
State Police, the Orange County Attorney, employees of the Orange County District Attorney' s
Office and the Orange County Sheriffs Office, government officials of the City of Newburgh,
and three New York state court judges. All defendants moved to dismiss.
This is Koltun' s second attempt to allege constitutional violations in connection with his
arrest and prosecution. On March 21 , 2014, the Court adopted three Reports and
Recommendations ("R&Rs") issued by Magistrate Judge James C. Francis IV recommending
dismissal of Koltun' s initial complaint, with leave to amend only as to his false arrest and
associated supervisory liability claims. By letter dated October 19, 2015, Koltun requested
appointment of counsel. On November 10, 2015, Magistrate Judge Francis denied Koltun' s
request. Koltun' s amended complaint was docketed on January 5, 2016.

1

On November 7, 2016, Magistrate Judge Francis issued a R&R that the defendants '
motions to dismiss the amended complaint be granted. On November 21, 2016, the Court
received Koltun' s objections to the R&R. On November 28, 2016, Defendant Glen Plotsky
responded to Koltun's objections. On December 9, 2016, the Court received a letter from
Koltun, objecting to Plotsky' s response.
The Court may "accept, reject, or modify, in whole or in part, the findings or
recommendations by the magistrate judge." 28 U.S .C. § 636(b)(l)(C). If a party objects to an
R&R, the Court must review those objections de novo. Fed. R. Civ. P. 72(b)(3). However, "to
the extent ... that the party makes only conclusory or general arguments, or simply reiterates the
original argument, the Court will review the [R&R] strictly for clear error." DiPilato v. 7Eleven, Inc., 662 F. Supp. 2d 333 , 339 (S.D.N.Y. 2009). "The objections of parties appearing
pro se are generally accorded leniency and should be construed to raise the strongest arguments

that they suggest." Id. at 340 (internal quotation marks omitted). "Nonetheless, even a prose
party' s objections to a Report & Recommendation must be specific and clearly aimed at
particular findings in the magistrate' s proposal, such that no party be allowed a second bite at the
apple by simply relitigating a prior argument." Id.
Construing Koltun' s objections to raise the strongest argument they suggest, Koltun
appears to argue that Magistrate Judge Francis is biased and partial. The basis for this argument
is Koltun' s general disagreement with the conclusions of the R&R. As the Court previously
explained in adopting Magistrate Judge Francis's R&Rs dismissing the initial complaint, mere
disagreement "provides no basis to challenge the distinguished Magistrate Judge' s
recommendations." Dkt. 125. Further, Magistrate Judge Francis' s order denying Koltun' s
application for the appointment of counsel does not suggest any partiality or bias, or provide any

2

basis to challenge the R&R. The Court agrees with Magistrate Judge Francis that Koltun has not
shown there is some likelihood of merit to his case, and so denial of the application was
appropriate. See Johnston v. Genessee Cnty. Sherif!Maha, 606 F.3d 39, 41 (2d Cir. 2010).
At best, Koltun' s remaining conclusory objections reiterate arguments that Magistrate
Judge Francis considered and rejected. The Court therefore reviews the November 7, 2016 R&R
for clear error. Finding none, the Court adopts the R&R in full.
Accordingly, the defendants' motions to dismiss are granted. The amended complaint is
dismissed, with prejudice. The Clerk of Court is directed to enter judgment and close this case.

SO ORDERED

Dated: New York, New York
February )__, 2017

United States District Judge
Copy Mailed by Chambers To:
Victor Kol tun
Walsh R.M.U. - 14Al241
P.O. Box 8451
Rome, NY 13442

3