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Palacio v. City of New York

May 31, 2007

HERIBERTO PALACIO, PLAINTIFF,
v.
THE CITY OF NEW YORK, ROBERT MORGANTHAU [SIC], JUDGE BONNIE WITTNER, CHRYSLER FINANCIAL CO. LLC, JACKIE ELFE, FRANKLIN DAVIS, GLEN[N] CARBONI, JOEL PASHCOW, LINDA SIMMONS, 1833 SEVENTH AVENUE CO., IRVIING LANGER [SIC], GALIL, L.L.C., DEFENDANTS.



OPINION AND ORDER

Plaintiff Heriberto Palacio appeals certain rulings made by United States Magistrate Judge Douglas F. Eaton in Memorandum and Orders dated January 18, 2006, May 3, 2006, May 11, 2006, and June 19, 2006. The challenged rulings: (i) permitted service on only six of the defendants named in the Second Amended Complaint; (ii) denied plaintiff's motion for permission to take an interlocutory appeal to the United States Court of Appeals for the Second Circuit; (iii) denied plaintiff's motion for judicial solicitude in locating defendants Jackie Elfe and Franklin Davis; (iv) directed plaintiff to execute a "Designation of Agent for Access to Sealed Records Pursuant to NY CPL § 160.50" and send it to municipal defendants' counsel; (v) denied plaintiff's motion to amend and/or supplement his Second Amended Complaint; (vii) dismissed plaintiff's claims against defendants Jackie Elfe and Franklin Davis; and (vii) denied plaintiff's request for appointed counsel. In addition, plaintiff challenges Chief Judge Michael Mukasey's dismissal of certain claims and defendants.

Background

Plaintiff, acting pro se, filed a complaint under 42 U.S.C. § 1983 alleging, inter alia, that defendants conspired to wrongfully arrest him, prosecute him, retaliate for the exercise of his constitutional rights, damage or steal his property, and deny him due process with regard to property seized pursuant to his arrest. The events arise from an ultimately aborted investigation of plaintiff for the homicide of his girlfriend, and the seizure of his property and automobile pursuant to that investigation. On March 15, 2004, Chief Judge Mukasey entered an order [4] (i) dismissing all of plaintiff's claims against Judge Bonnie Wittner, New York District Attorney Robert Morgenthau, 1833 Seventh Avenue Co., Irving Langer, Galil L.L.C. and Chrysler Financial Co. L.L.C.; (ii) dismissing plaintiff's claims for false arrest, false imprisonment, malicious prosecution, conspiracy, retaliation, and damages for deprivation of property; and (iii) granting plaintiff leave to amend his complaint "in order to detail his claims that defendants violated his due process rights in failing to provide him adequate notice and opportunity to be heard regarding plaintiff's claiming of his seized property," and in order to detail his claims regarding an alleged wrongful municipal policy or custom.

On July 26, 2004, plaintiff filed an amended complaint [7] that failed to comply with Judge Mukasey's March 15, 2004 order, giving some limited additional details as to the claims Judge Mukasey granted him leave to amend, but entirely failing to remove the claims and defendants that Judge Mukasey had dismissed, and adding new ones that were subject to dismissal for the same reasons elucidated in the order. Therefore, on March, 25, 2005, Judge Mukasey entered an order [9] directing plaintiff to submit a second amended complaint. After requesting several extensions, plaintiff filed a Second Amended Complaint [14] on October 3, 2005. On its face, the Second Amended Complaint still failed to comply with Judge Mukasey's original order. Nonetheless, the case was transferred to this Court on November 3, 2005, and on December 23, 2005, the Court entered an order [18] referring the case to Magistrate Judge Eaton for general pre-trial supervision. A tortuous series of written exchanges followed between plaintiff and Judge Eaton that culminated in this appeal.

On January 18, 2006, Judge Eaton entered a Memorandum and Order [19] permitting service upon the six defendants against whom plaintiff's claims were not explicitly dismissed by Judge Mukasey: the City of New York, Jackie Elfe, Franklin Davis, Glen Carboni, Linda Simmons, and Joel Pashchow. Plaintiff subsequently filed an "Omnibus Motion" [21] on February 23, 2006 seeking: (i) reconsideration of Judge Eaton's January 18, 2006 order; (ii) permission to appeal the order to the Court of Appeals for the Second Circuit; (iii) judicial solicitude in locating certain defendants; and (iv) an enlargement of time in which to serve defendants Elfe, Davis and Pashcow. Plaintiff filed another motion [30], dated April 19, 2006, but not received by the court until May 8, 2006, requesting permission to supplement his Second Amended Complaint by adding causes of action and defendants.

By order [27] dated May 3, 2006, Judge Eaton: (i) denied reconsideration of his January 18, 2006 order; (ii) denied plaintiff's motion for permission to take an interlocutory appeal; (iii) denied plaintiff's motion for judicial solicitude in finding and an enlargement of time for serving defendants Elfe and Davis, who Judge Eaton found were not state actors, but allowed plaintiff an opportunity to file a statement as to why he should still be allowed to sue them under 42 U.S.C. § 1983; (iv) extended plaintiff's time to serve defendant Pashcow; and (v) directed plaintiff to execute a "Designation of Agent for Access to Sealed Records Pursuant to NYCPL § 160.50(1)(d)." Subsequently, on May 11, 2006, Magistrate Judge Eaton entered an order [29] denying plaintiff's motion to amend and supplement his Second Amended Complaint and dismissing claims against defendants Elfe and Davis.

Plaintiff thereafter filed another motion [32], dated May 21, 2006, but not received by the court until June 14, 2006, when it was forwarded to the court by defense counsel. This seventeen page document: (i) sought reconsideration of Judge Eaton's May 3 order that directed plaintiff to designate defendant's counsel as an agent for access to sealed records; (ii) sought reconsideration of Judge Eaton's May 11 order that denied plaintiff's request to amend or supplement the Second Amended Complaint; (iii) gave "Notice of Appeal" of Judge Eaton's orders denying plaintiff's request to appeal the January 18 order, denying his request for judicial solicitude in locating and an enlargement in which to serve non-governmental defendants, and denying his motion to amend and supplement his Second Amended Complaint; (iv) moved Judge Eaton to appoint him counsel; (v) sought to add the New York Daily News as a defendant; and (vi) sought clarification as to several matters, including which claims and defendants remained in the action. Plaintiff filed yet another motion [34], dated June 13, 2006 and received by the court on June 16, 2006, entitled "Statement in Support of Claim." This sixteen page document described the theories of liability on which, and the defendants against whom, plaintiff believed he should be allowed to proceed, and insisted that not all of his claims were premised on 42 U.S.C. § 1983 liability.*fn1 Most of the described claims and defendants were explicitly dismissed in Judge Mukasey's March 15, 2004 order.

On June 19, 2006, Judge Eaton entered a Memorandum and Order [31] that: (i) again directed plaintiff to execute a "Designation of Agent for Access to Sealed Records Pursuant to NYCPL § 160.50(1)(d)" or else Judge Eaton would recommend that this Court dismiss the action; (ii) denied plaintiff's motion to reconsider his May 11, 2006 order; (iii) denied plaintiff's motion for the court to appoint counsel; (iv) denied plaintiff's request to add the New York Daily News as a defendant; (v) restated which claims from his Second Amended Complaint were still viable; and (vi) deemed plaintiff's "Notice of Appeal" as an appeal to this Court.

Before plaintiff had received this order, he submitted another motion [35] entitled "Motion for Judgment on the Pleadings," received by the court on June 21, 2006. Plaintiff again moved Judge Eaton to appoint him legal counsel, again moved for permission to amend his Second Amended Complaint, despite that motion having been previously made and denied and the motion to reconsider the denial also denied, and preemptively sought permission to appeal denial of such relief to the United States Court of Appeals for the Second Circuit. The plaintiff also requested that Judge Eaton delineate which of the twenty-two causes of action set forth in the forty-six page Second Amended Complaint had been dismissed, and the legal basis for the dismissal. This brings the Court, at long last, to plaintiff's final motion [37], dated June 21, 2006, received by the court on July 10, 2006, and entitled "Notice of Appeal with Request to Hold in Abeyance." Therein, plaintiff challenges essentially every ruling made by Judge Eaton since the case was referred to him six months earlier.

Standard of Review

28 U.S.C. § 636 defines the standard for review of a Magistrate Judge's orders, depending on whether they are dispositive or not. When reviewing a dispositive order, "a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b). A judge may reconsider a pretrial order regarding non-dispositive issues "where it has been shown that the magistrate's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a). A decision is "clearly erroneous" when the Court is, "upon review of the entire record, [] left with the definite and firm conviction that a mistake has been committed." United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006).

Discussion

In addition to objecting to numerous of Judge Eaton's orders, the plaintiff asks for clarification of the effect of Judge Mukasey's order and which claims and defendants remain in this litigation. The Court will oblige him. Judge Mukasey's order, dated March 15, 2004, found plaintiff's original complaint to be defective in its entirety. Judge Mukasey permitted amendment as to certain defective claims. These included: (1) a claim that defendants violated plaintiff's due process rights in failing to provide plaintiff adequate notice and opportunity to be heard regarding his claiming of his seized property;*fn2 and (2) a claim of a wrongful municipal policy that violated his constitutional rights. Judge Mukasey did not grant plaintiff leave to add additional claims.*fn3

Judge Mukasey dismissed all other claims and certain defendants, without granting plaintiff leave to amend to cure the defects, and directed plaintiff to remove those claims and defendants from the complaint. This included dismissing: (1) all claims for false arrest, false imprisonment, and malicious prosecution as failing under Heck v. Humphries, 512 U.S. 477, 489 (1994); (2) all claims for retaliation and alleging a conspiracy as insufficiently pled; (3) all claims seeking damages for property that defendants allegedly lost or damaged because an adequate post-deprivation remedy existed; (4) all claims against Judge Bonnie Wittner and New York District Attorney Robert ...


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