Scull v. Hennegan et al
Filing
152
DECISION AND ORDER adopting Magistrate Judge Jeremiah J. McCarthy's Report and Recommendation 119 . Pro se Plaintiff's 102 motion for partial summary judgment is denied. This matter is recommitted to Magistrate Judge McCarthy for further proceedings. A copy of the Decision and Order has been mailed to John T. Scull, 422 10th Street, Niagara Falls, NY 14303. SO ORDERED. Signed by Hon. Richard J. Arcara on 11/1/2018. (LAS)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOHN T. SCULL,
Plaintiff,
DECISION AND ORDER
15-CV-309A
v.
PATRICK K. HENNEGAN,
THOMAS G. EWING,
ROGER TREVINO and
JOHN P. BARTOLOMEI,
BRIAN DALPORTO,
NIAGARA FALLS REDEVELOPMENT LLC,
11TH STREET PROPERTIES LLC,
CLARKSVILLE LAND COMPANY LLC,
HOWARD MILSTEIN (owner NFR),
CITY OF NIAGARA FALLS NEW YORK,
Defendants.
This case was referred to Magistrate Judge Jeremiah J. McCarthy, pursuant to
28 U.S.C. § 636(b)(1)(B). On May 14, 2018, Judge McCarthy filed a Report and
Recommendation (Dkt. No. 119), recommending that pro se Plaintiff John T. Scull’s
motion for partial summary judgment (Dkt. No. 102) be denied.
On June 1, 2018, the Plaintiff filed objections to the Report and
Recommendation (Dkt. No. 121). Each Defendant has responded to the Plaintiff’s
objections. The Plaintiff has also filed “supplementing objections” (Dkt. 122) and a
motion to “amend his objections” (Dkt. 133). Given the Plaintiff’s pro se status, and in
light of the fact that no party has objected to these procedurally-irregular filings, the
Court has considered these documents as part of the Plaintiff’s original objections.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must review de novo those portions
of the Report and Recommendation to which objections have been made. Upon de
novo review, and after reviewing the submissions from the parties, the Court adopts
Judge McCarthy’s recommendations. As Judge McCarthy’s summary of the record
demonstrates, the Plaintiff has not shown that, when the facts are viewed in the light
most favorable to the Defendants, there is no genuine dispute over whether (1) the
Plaintiff is the owner of the 8' x 12' bulldog kiosk that was allegedly stolen; (2) the
municipal defendants are entitled to qualified immunity; and (3) the City of Niagara Falls
is liable for the Plaintiff’s claims. See generally Monell v. Dep’t of Soc. Servs., 436 U.S.
658 (1978). Thus, for the reasons set forth in Magistrate Judge McCarthy’s Report and
Recommendation, the Plaintiff’s motion for partial summary judgment is denied.
Finally, the Plaintiff’s objections suggest, e.g., Dkt. 133 at 2, that the Plaintiff
intends to attempt to take an interlocutory appeal if the Court denies his motion for
partial summary judgment. Because “the filing of a notice of appeal is an event of
jurisdictional significance,” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58
(1982), and because a federal court has “an independent obligation to determine
whether subject-matter jurisdiction exists, even in the absence of a challenge from any
party,” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006), the Court sua sponte
considers whether the Plaintiff’s anticipated notice of appeal will divest the Court of
subject-matter jurisdiction.
“A district court’s denial of summary judgment is ordinarily not an appealable ‘final
decision’ within the meaning of 28 U.S.C. § 1291,” and none of the limited exceptions to
the final-decision rule appears to be implicated by this Decision and Order. Tolbert v.
Queens College, 164 F.3d 132, 138 (2d Cir. 1999). See also Plumhoff v. Rickard, 134 S.
Ct. 2012, 2018 (2014) (“An order denying a motion for summary judgment is generally not
a final decision within the meaning of § 1291 and is thus generally not immediately
appealable.”)
The Plaintiff’s anticipated notice of appeal therefore appears to be
premature.
Although the filing of a notice of appeal typically divests a district court of subjectmatter jurisdiction, see Griggs, 459 U.S. at 58, a premature notice of appeal does not
do so. See United States v. Rodgers, 101 F.3d 247, 251-52 (2d Cir. 1996). The Court
therefore concludes that, notwithstanding the Plaintiff’s anticipated notice of
interlocutory appeal, the Court retains subject-matter jurisdiction over this case.
The matter is recommitted to Judge McCarthy for further proceedings.
IT IS SO ORDERED.
___s/Richard J. Arcara__________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: November 1, 2018
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