Klein v. Metropolitan Transit Authority et al

Filing 98

ORDER for 87 REPORT AND RECOMMENDATION re: 62 MOTION to Dismiss filed by Gina Mital, 81 MOTION to Amend/Correct 2 Complaint filed by Christian Paul Enzo Klein. For the foregoing reasons, the Report and Recommendation is adopted in part. Th e Amended Complaint is dismissed as to Mital, and Plaintiff is denied leave to amend with respect to his claim for slander. However, Plaintiff is granted leave to amend the Amended Complaint to plead a state law claim for malicious prosecution aga inst Mital and to plead a section 1983 claim against Mital provided he is able to allege that Mital's allegedly unlawful actions were performed under color of state law. The Clerk of Court is respectfully directed to mail a copy of this Order to Plaintiff. SO ORDERED. (Signed by Judge John P. Cronan on 5/22/2023) (jca)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
CHRISTIAN PAUL ENZO KLEIN,
:
:
Plaintiff,
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:
-v:
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METROPOLITAN TRANSIT AUTHORITY et al.,
:
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Defendants.
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:
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21 Civ. 7118 (JPC)
ORDER

JOHN P. CRONAN, United States District Judge:
Plaintiff Christian Paul Enzo Klein alleges that after he accidentally boarded an express
Metro-North train from Harlem-125th Street to New Haven, rather than the local train from
Harlem-125th Street to Port Chester for which he had purchased a ticket, he was wrongfully
arrested, with excessive force, by officers with the Metropolitan Transit Authority (“MTA”) Police
Department, and he was subsequently maliciously prosecuted. Dkt. 24 (“Am. Compl.”) at 5-6. In
addition to bringing this action against the MTA, the MTA Police Department, the train’s
conductor, and the four MTA Police Officers who allegedly arrested him, Plaintiff sues Defendant
Gina Mital, a probation officer for the City of Stamford, id. at 5, who allegedly accompanied those
officers, id., and whom he accuses of “slander . . . for making a false statement to the police,” id.
at 6. Mital moves to dismiss the Amended Complaint for failure to state a claim upon which relief
can be granted. Dkt. 62. In response, Plaintiff moves for leave to amend the Amended Complaint.
Dkt. 81.
On December 5, 2022, the undersigned referred the motion to dismiss and the thenanticipated motion for leave to amend to the Honorable James L. Cott for a report and

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recommendation. Dkt. 65. On March 6, 2023, Judge Cott issued his Report and Recommendation.
Dkt. 87 (“R&R”). As to Mital’s motion to dismiss, Judge Cott first recommended dismissing
Plaintiff’s section 1983 claims against Mital on the grounds that the Amended Complaint fails to
adequately plead that she was a state actor during Plaintiff’s arrest. Id. at 6-8. Next, he
recommended that, to the extent the Amended Complaint does bring claims against Mital for
malicious prosecution under section 1983, they should be dismissed because the Amended
Complaint fails to adequately plead the elements of the tort of malicious prosecution under New
York law. Id. at 8. Lastly, he recommended that Plaintiff’s slander claim against Mital should be
dismissed because the statute of limitations has run. Id. at 10. As to Plaintiff’s motion for leave
to amend, Judge Cott recommended that the motion be denied because any attempt to replead
would be futile, given that Plaintiff’s slander claim is time-barred and that he already had multiple
opportunities to cure the deficiencies in his other claims against Mital. Id. at 11-12. Through an
undated letter received on March 20, 2023, Plaintiff filed brief objections to the Report and
Recommendation. Dkt. 95 (“Objections”). In full, it reads:
Although I appreciate the court[’]s assistance now and always, I oppose the
recommendation made that defendant Gina Mital be dismissed from this case. The
defendant herself admits in a sworn statement against me that [she] made
statements to the MTA PD against me. Such statements were used in my
prosecution. My case was dismissed, despite statements by defendant Mital. I ask
the court to accommodate the fact I am not a trained attorney, and while the “legal
jargon” might n[o]t be text book that we look at the fact the defendant admits to
making these statements against me. For those reasons I ask the court to not dismiss
defendant Mital from the suit. What the defendant did was an abuse of authority,
and they must be held accountable.
Id.
A district court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge” in a report and recommendation. 28 U.S.C.
§ 636(b)(1)(C). Within fourteen days after a party has been served with a copy of a magistrate
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judge’s report and recommendation, the party “may serve and file specific written objections to
the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). If a party submits a timely
objection to any part of the magistrate judge’s disposition, the district court will conduct a de novo
review of the contested section. Fed. R. Civ. P. 72(b)(3); see also United States v. Male Juv., 121
F.3d 34, 38 (2d Cir. 1997).

The district court reviews those portions of a report and

recommendation to which no timely objection was filed only for clear error. Lewis v. Zon, 573 F.
Supp. 2d 804, 811 (S.D.N.Y. 2008).
“The objections of pro se parties are ‘generally accorded leniency and should be construed
to raise the strongest arguments that they suggest.’” Machicote v. Ercole, No. 06 Civ. 13320
(DAB) (JCF), 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011) (quoting Howell v. Port Chester
Police Station, No. 09 Civ. 1651 (CS) (LMS), 2010 WL 930981, at *1 (S.D.N.Y. Mar. 15, 2010)).
“Nonetheless, even a pro se party’s objections to a Report and 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. (quoting Pinkney v.
Progressive Home Health Servs., No. 06 Civ. 5023 (LTS) (JCF), 2008 WL 2811816, at *1
(S.D.N.Y. July 21, 2008)).
First, the Court adopts the portion of the Report and Recommendation concerning the
dismissal of Plaintiff’s claim against Mital for slander. Even when liberally construed, Plaintiff’s
objections to this portion of the Report and Recommendation do not address the grounds for Judge
Cott’s recommendation of dismissal. While Plaintiff insists that Mital did, in fact, make the
statement alleged and that her statement was, in fact, used in his prosecution, see Objections, Judge
Cott recommended dismissal on the grounds that too much time elapsed between when Mital
allegedly made that statement and when Plaintiff filed this lawsuit, R&R at 10. Furthermore,

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having reviewed for clear error, the Court agrees that the claim for slander must be dismissed as
time-barred. Under Connecticut law, “[n]o action for . . . slander shall be brought but within two
years from the date of the act complained of.” Conn. Gen. Stat. § 52-597 (2023). The Amended
Complaint alleges that Plaintiff was arrested by MTA Police Officers, accompanied by Mital, on
August 22, 2018, Am. Compl. at 5, and does not further allege that Mital took any action on any
other day, while the Complaint was not filed until August 23, 2021, see Dkt. 2. Because more
than two years elapsed between those dates, Connecticut law bars Plaintiff’s slander claim. 1
As to the remaining claims against Mital, the Court first notes, as a preliminary matter, that
even liberally construed it is not at all clear that the Amended Complaint brings any claims against
Mital beyond one for slander. The lone fact about her alleged in Plaintiff’s statement of facts is
that she walked towards Plaintiff in the company of four MTA Police Officers and the MetroNorth conductor, Am. Compl. at 5; the statement of additional facts appended to the Amended
Complaint, Dkt. 24-1, does not mention her at all, id.; and the lone mention of her in the description
of the relief Plaintiff seeks concerns only the slander claim, not Plaintiff’s remaining claims, Am.
Compl. at 6. Nonetheless, to the extent that the Amended Complaint does also bring claims against
Mital under section 1983, the Court adopts the portion of the Report and Recommendation
recommending dismissal of those claims. As with the slander claim, Plaintiff’s objections to this
portion of the Report and Recommendation, even liberally construed, do not address Judge Cott’s
recommendation that any section 1983 claim against Mital be dismissed on the grounds that
Plaintiff fails to allege that she was a state actor at the time the incident occurred. See R&R at 68. Furthermore, having reviewed for clear error, the Court agrees that the Amended Complaint is

1

Furthermore, to the extent that a choice-of-law question might arise as to the law
governing Plaintiff’s claim for slander, New York law imposes a one-year statute of limitations on
such a claim. See N.Y. C.P.L.R. § 215(3) (2023).
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deficient in this respect. Section 1983 allows for liability only as to persons who act “under color
of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of
Columbia.” 42 U.S.C. § 1983. In turn, “[t]o act under color of state law or authority for purposes
of section 1983, the defendant must have exercised power possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the authority of state law.” Monsky v.
Moraghan, 127 F.3d 243, 245 (2d Cir. 1997) (internal quotation marks omitted). And while Mital
is allegedly employed as a probation officer by the City of Stamford, see Am. Compl. at 5, the sole
action she is alleged to have performed—namely, giving a statement to police—does not require
any power “possessed by virtue of state law and made possible only because [she was] clothed
with the authority of state law,” Monsky, 127 F.3d at 245. Thus, because Plaintiff does not allege
that Mital acted under color of state law when she made a statement to police about him, the
Amended Complaint fails to state a claim against Mital under section 1983 for which relief may
be granted.
Next, the Court turns to Plaintiff’s motion for leave to amend the Amended Complaint.
First, the Court adopts that portion of the Report and Recommendation recommending denial of
leave to amend Plaintiff’s claim for slander. Judge Cott concluded that any amendment would be
futile for the same reason that the claim should itself be dismissed—namely, the time during which
Connecticut law requires a claim for slander to be brought had already passed before this lawsuit
was filed, an obstacle that cannot be surmounted by repleading in another amended complaint.
R&R at 11-12. As mentioned, Plaintiff’s Objections do not address this ground for the denial of
leave to amend.

Furthermore, having reviewed for clear error, the Court agrees that any

amendment as to this claim would be futile: The only cure for the deficiency in Plaintiff’s claim

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for slander would be for his Complaint to have been filed sooner, and effecting that cure lies
beyond the power of an amendment to the pleadings in this case.
The Court has observed that it is unclear whether—even construed liberally—the Amended
Complaint succeeds at bringing any claim against Mital besides one for slander. In his Report and
Recommendation, Judge Cott concluded that it would similarly be futile for Plaintiff to amend the
Complaint with respect to any non-slander claims against Mital—whether that amendment would
add new claims or replead existing ones—and on that basis recommended that leave to amend be
denied in full. Id. at 10-12. Among the claims that Plaintiff seeks to add through further
amendment is one for malicious prosecution. Dkt. 63. In determining that any malicious
prosecution claim would lack merit, Judge Cott analyzed whether Plaintiff might successfully
plead a claim for malicious prosecution under section 1983. R&R at 8. In addition to the failure
to adequately allege that Mital acted under color of state law, which, as discussed above, poses an
obstacle to any section 1983 claim against her, Judge Cott noted that to adequately plead a section
1983 claim for malicious prosecution, Plaintiff would be required to allege the elements of
malicious prosecution under state law. However, Judge Cott reasoned, Plaintiff has failed to allege
one element of malicious prosecution under New York law—namely, that Mital took an active
role in Plaintiff’s prosecution. Id.
But a section 1983 claim relying on New York state law may not be the only avenue
through which Plaintiff could pursue a malicious prosecution claim against Mital. Malicious
prosecution is a non-constitutional tort in its own right, and particularly if Mital did not act under
color of state law, it would be more natural for Plaintiff to pursue any claim against her as an
ordinary tort rather than as a constitutional one. Furthermore, while Judge Cott correctly analyzed
the deficiencies of a malicious prosecution claim against Mital under New York law given

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Plaintiff’s failure to allege Mital’s direct involvement in the commencement or continuation of a
criminal proceeding, see R&R at 8, in the event Mital is alleged to have made a false statement in
Connecticut rather than New York (which is not clear based on the allegations in the Amended
Complaint), New York choice-of-law principles may require the application of Connecticut
malicious prosecution law, see Padula v. Lilarn Props. Corp., 644 N.E.2d 1001, 1002 (N.Y. 1994)
(providing that the law of the jurisdiction where the tort occurred generally governs when conductregulating laws conflict); Heaney v. Purdy, 272 N.E.2d 550, 551 (N.Y. 1971) (applying the law of
a foreign jurisdiction in a malicious prosecution action so as to vindicate “that jurisdiction’s
interest in regulating conduct within its borders” (internal quotation marks omitted)). Furthermore,
it appears that under Connecticut law an allegation that the defendant knowingly made a false
statement to police may suffice to state a claim for malicious prosecution, regardless of whether
the defendant further took an active role in the prosecution. See Bhatia v. Debek, 948 A.2d 1009,
1018-19 (Conn. 2008). Thus, while for a number of reasons a state law malicious prosecution
claim may not ultimately succeed, the Court cannot say at this time that an amendment to add it
would be futile, particularly given the leniency afforded to Plaintiff as a pro se litigant. For that
reason, the Court will allow Plaintiff to amend his Amended Complaint to add a state law claim
for malicious prosecution against Mital. 2
Lastly, the Court turns to whether to permit amendment with respect to Plaintiff’s section
1983 claims against Mital. Judge Cott concluded that allowing an amendment concerning
allegations that Mital acted under color of state law would be futile because Plaintiff has already

2

The Court further notes that while New York imposes a one-year statute of limitations on
claims for malicious prosecution, see N.Y. C.P.L.R. § 215(3) (2023), Connecticut allows an action
for malicious prosecution to be brought at any point within three years from the termination of the
relevant prosecution, Conn. Gen. Stat. §52-577f (2023), which in this case is alleged to have
terminated on October 31, 2019, Am. Compl. at 6.
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been given multiple opportunities to adequately plead that element of a section 1983 claim but has
failed to do so. R&R at 11-12. While the Court agrees that it would be unreasonable to grant
leave to amend solely to provide Plaintiff with yet another opportunity to allege that Mital acted
under color of state law, since the Court grants Plaintiff leave to amend to add a state law malicious
prosecution claim against Mital, the Court will also allow him one final opportunity to attempt to
plead that Mital acted under color of state law. Plaintiff is cautioned, however, that he should
make such an amendment only if he can allege that, when making her alleged statement to MTA
Police, Mital did not merely act as a private citizen but instead exercised authority given to her by
state law.
For the foregoing reasons, the Report and Recommendation is adopted in part. The
Amended Complaint is dismissed as to Mital, and Plaintiff is denied leave to amend with respect
to his claim for slander. However, Plaintiff is granted leave to amend the Amended Complaint to
plead a state law claim for malicious prosecution against Mital and to plead a section 1983 claim
against Mital provided he is able to allege that Mital’s allegedly unlawful actions were performed
under color of state law. The Clerk of Court is respectfully directed to mail a copy of this Order
to Plaintiff.
SO ORDERED.
Dated: May 22, 2023
New York, New York

__________________________________
JOHN P. CRONAN
United States District Judge

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