Ashby v. Murphy et al

Filing 87

DECISION AND ORDER: For the reasons stated in this decision and in the R&R, the County and State defendants' motions for summary judgment, Docket Items 72 and 73, are GRANTED, and Ashby's claims against Violante are DISMISSED for failure to effect service. The Clerk of the Court shall close the case. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 1/5/2023. (WMH)This was mailed to: the plaintiff.Clerk to Follow up

Case 1:17-cv-01099-LJV-JJM Document 87 Filed 01/05/23 Page 1 of 4

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KEVIN ASHBY,
Plaintiff,
v.
JAMES A. MURPHY, III, et al.,

17-CV-1099-LJV-JJM
DECISION & ORDER

Defendants.

On October 30, 2017, the pro se plaintiff, Kevin Ashby, commenced this action
under 42 U.S.C. § 1983 and various other federal and state laws. 1 Docket Item 1.
Ashby says that Joel M. Grundy and Holly E. Sloma (the “County defendants”); James
A. Murphy, III, and Joseph Abraham (the “State defendants”); and Michael J. Violante
violated his constitutional rights when they investigated and prosecuted Ashby for
perpetrating an insurance fraud scheme. 2 See id.
On March 9, 2020, this Court referred this case to United States Magistrate
Judge Jeremiah J. McCarthy for all proceedings under 28 U.S.C. § 636(b)(1)(A) and
(B). Docket Item 18. On June 3, 2022, the County and State defendants moved for
summary judgment. See Docket Items 72, 73. On June 27, 2022, Ashby responded to
the County and State defendants’ motions, see Docket Item 75; four days later, the

Ashby also brought two separate cases involving similar facts, which this Court
consolidated into this case. See Docket Item 6.
1

This Court previously dismissed Ashby’s claims against the other defendants in
this case. See Docket Items 6, 42, 56.
2

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County and State defendants replied, see Docket Items 78, 79. The parties then filed
supplemental briefing on the motions. See Docket Items 80-85.
On November 28, 2022, Judge McCarthy issued a Report and Recommendation
(“R&R”) finding that the County and State defendants’ motions should be granted and
recommending that Ashby’s claims against Violante be dismissed for failure to effect
service. See Docket Item 86. The parties did not object to the R&R, and the time to do
so now has expired. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).
A district court may accept, reject, or modify the findings or recommendations of
a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The court must
review de novo those portions of a magistrate judge’s recommendation to which a party
objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). But neither 28 U.S.C. § 636
nor Federal Rule of Civil Procedure 72 requires a district court to review the
recommendation of a magistrate judge to which no objections are raised. See Thomas
v. Arn, 474 U.S. 140, 149-50 (1985).
Although not required to do so in light of the above, this Court nevertheless has
reviewed Judge McCarthy’s R&R as well as the parties’ submissions to him. Based on
that review and the absence of any objections, the Court accepts and adopts Judge
McCarthy’s recommendation to grant the County and State defendants’ motions. 3

As Judge McCarthy explained, Ashby’s conviction for third-degree insurance
fraud and third-degree attempted grand larceny precludes any malicious prosecution
claim related to those charges. See Docket Item 86 at 17. Ashby also was charged
with, but not indicted for, falsifying business records in the first degree. See id. at 3.
But he cannot maintain a separate malicious prosecution claim related to that charge
because he has not offered any nonconclusory allegations suggesting that the charge
was “commenced (or continued) in the absence of probable cause.” See Rothstein v.
Carriere, 373 F.3d 275, 292 (2d Cir. 2004); see also McLennon v. City of New York, 171
F. Supp. 3d 69, 93-94 (E.D.N.Y. 2016) (“[T]he lack of probable cause is an element of
3

2

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Moreover, as Judge McCarthy explained, Ashby has not served Violante despite
multiple extensions of time to do so. Nor did Ashby object to Judge McCarthy’s
recommendation to dismiss the claims against Violante—for example, by showing good
cause for his failure to effect service. Ashby’s claims against Violante therefore are
dismissed for failure to effect service.
For the reasons stated above and in the R&R, the County and State defendants’
motions for summary judgment, Docket Items 72 and 73, are GRANTED, and Ashby’s
claims against Violante are DISMISSED for failure to effect service. The Clerk of the
Court shall close the case.
The Court hereby certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore denies leave to appeal as a poor
person. Coppedge v. United States, 369 U.S. 438 (1962). Ashby must file any notice of
appeal with the Clerk’s Office, United States District Court, Western District of New
York, within 30 days of the date of judgment in this action. Requests to proceed on
appeal as a poor person must be filed with the United States Court of Appeals for the
Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of
Appellate Procedure.
[a] malicious prosecution claim.”). As detailed in the R&R, Ashby submitted false
insurance claims and ultimately was convicted of insurance fraud and attempted grand
larceny for that conduct. See Docket Item 86 at 2-4. Those uncontested facts are
sufficient to establish probable cause to charge Ashby with falsifying business records
in the first degree. See, e.g., Lenhard v. Dinallo, 2011 WL 4592804, at *10 (N.D.N.Y.
Sept. 30, 2011) (“[It was] reasonable for a prudent person to believe that Plaintiffs
attempted to defraud [the insurance company] by intentionally submitting proofs of loss
and contents lists that contained false information in violation of New York Penal Law §
175.10 (Falsifying Business Records in the First Degree).”). Therefore, Ashby has not
raised a viable malicious prosecution claim with respect to any of the charges lodged
against him.
3

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SO ORDERED.
Dated:

January 5, 2023
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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