Salim v. County of Erie et al

Filing 33

DECISION AND ORDER adopting Magistrate Judge H. Kenneth Schroeder. Jr.'s Report and Recommendation 22 . Defendants' motions to dismiss 2 10 11 and 13 are granted as outlined in the attached Decision and Order. Plaintiff Salim shall have 35 days from the date of this Decision and Order to attempt to effect proper service of the summons and complaint upon remaining Defendants, and he is ordered to file proof of service or waiver of service in the docket within 45 days of that da te. Plaintiff Salim is further ordered to file a statement made under oath or penalty of perjury summarizing the status of a criminal proceeding underlying his false arrest claim against Cheektowaga Police Officer Robert Joyce within 45 days from the date of this Decision and Order. The Clerk of the Court shall enter judgment in favor of Defendants Buffalo Police Department and Cheektowaga Police Department, and shall terminate them from the caption of this case. The Clerk shall also terminate the State of New York. This matter is recommitted to Magistrate Judge Schroeder for further proceedings. SO ORDERED. Signed by Hon. Richard J. Arcara on 1/18/18. (LAS)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RAFIQ J. SALIM,
Plaintiff,
DECISION AND ORDER
15-CV-418-A

v.
COUNTY OF ERIE, et al.,

Defendants.

This case was referred to Magistrate Judge H. Kenneth Schroeder, Jr.,
pursuant to 28 U.S.C. § 636(b)(1) for the conduct of pretrial proceedings. On August
31, 2017, Magistrate Judge Schroeder filed a Report and Recommendation (Dkt. No.
22) addressing the Defendants’ motions to dismiss Plaintiff Rafiq J. Salim’s complaint
(Dkt. Nos. 2, 10, 11 and 13). Magistrate Judge Schroeder recommends that
Defendants’ motions be granted.
The Court has carefully reviewed the Report and Recommendation, the record
in this case, and no objections to the Report and Recommendation having been timely
filed, it is hereby
ORDERED, pursuant to 28 U.S.C. § 636(b)(1), the Court adopts the Report and
Recommendation except to the extent that it recommends dismissal of claims against
the State of New York be with prejudice. As the Magistrate Judge recommends, those
claims are barred by the State’s immunity, and are therefore beyond the Court’s
subject matter jurisdiction and must be dismissed. But a dismissal for lack of subject

matter jurisdiction is because the Court lacks the power to hear a claim, and is
necessarily without prejudice. Hernandez v. Conriv Realty Assocs., 182 F.3d 121,
123 (2d Cir. 1999). Otherwise, the Defendants’ motions to dismiss Plaintiff’s
complaint are granted for the reasons stated in the Report and Recommendation as
follows: 1) the motions to dismiss the Cheektowaga Police Department (Dkt. No. 2),
and the Buffalo Police Department (Dkt. No. 10) for failure to state a claim are granted
with prejudice; 2) the motion to dismiss of Cheektowaga Police Officer Robert Joyce
(Dkt. No. 2) is granted with prejudice with respect to Plaintiff’s false arrest, unlawful
imprisonment, due process and unlawful seizure claims, and with respect to Plaintiff’s
malicious prosecution claim (Dkt. No. 2) without prejudice if, but only if, the underlying
criminal charges are resolved in Plaintiff’s favor; and 3) granted as against all
remaining Defendants for lack of personal jurisdiction, without prejudice to one final
opportunity to complete personal service as described below.
Plaintiff Salim shall have 35 days from the date of this Decision and Order to
attempt to effect proper service of the summons and complaint upon remaining
Defendants, and he is hereby ORDERED to file proof of service or waiver of service in
the docket within 45 days of that date.
Plaintiff Salim is further ORDERED to file a statement made under oath or
penalty of perjury summarizing the status of a criminal proceeding underlying his false
arrest claim against Cheektowaga Police Officer Robert Joyce within 45 days from the
date of this Decision and Order. The Court hereby notifies the parties pursuant to
Fed. R. Civ. P. 56(f)(3) that it will consider granting summary judgment in favor of
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Defendant Joyce if those criminal proceedings were not resolved in Plaintiff’s favor.
The Clerk shall enter Judgment in favor of Defendants Buffalo Police
Department, Cheektowaga Police Department, and shall terminate them from the
caption of the case. The Clerk shall also terminate the State of New York. The action
is recommitted to Magistrate Judge Schroeder for further proceedings.
IT IS SO ORDERED.
____Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: January 18, 2018

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