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Scheidel v. Kosse

September 28, 2010

STEPHEN L. SCHEIDEL, PLAINTIFF,
v.
MICHELLE KOSSE; ROBERT J. FAGAN; MICHELLE BORZILLO; RICHARD B. FRYE; CHRIS J. CONANAN; TOMMIE BARNES; JAMES R. LAWRENCE; HENRY R.F. GRIFFIN; ERICA F. BOVENZI; ROBERT FELDMAN; BARBARA PFAFFENBERGER; AND JOYCE YAMASKI, DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently before the Court in this pro se civil rights action filed by Stephen L. Scheidel. ("Plaintiff") is United States Magistrate Judge George H. Lowe's Report-Recommendation recommending that Plaintiff's Complaint be dismissed with prejudice, and that Plaintiff's pending motion to appoint counsel (Dkt. No. 2) and letter-motion for a three-judge panel (Dkt. No. 4) be denied as moot (Dkt. No. 6). For the reasons that follow, the Report-Recommendation is accepted and adopted in its entirety; Plaintiff's Complaint is dismissed; and his motion to appoint counsel and letter-motion for a three-judge panel are denied as moot.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

Plaintiff filed his Complaint on November 15, 2009. (Dkt. No. 1.) Construed with the utmost of liberality, Plaintiff's Complaint alleges that the above-named employees of the Federal Deposit Insurance Corporation ("FDIC") caused the FDIC to wrongfully withdraw its offer of employment to Plaintiff as a bank examiner in 2008 after a criminal background check revealed that he had been convicted of the felony of embezzlement from an employee pension fund, pursuant to 18 U.S.C. § 664, in 1992. (See generally, Dkt. No. 1 [Plf.'s Compl.].) Based on these factual allegations, Plaintiff asserts a host of claims under the United States Constitutions and related New York State law. For a more detailed recitation of these claims, and the factual allegations giving rise to them, the Court refers the reader to the Complaint in its entirety.

B. Procedural History

On May 5, 2010, Magistrate Judge Lowe issued a Report-Recommendation, in which he recommended that the Complaint be dismissed with prejudice, pursuant to U.S.C. § 1915(e), based on his finding that the underlying claims are duplicative of those claims raised in Plaintiff's separately pending action against a federal agency, Scheidel v. Fed. Deposit Ins. Corp., No. 5:09-CV-0114 (N.D.N.Y.). (Dkt. No. 6.)

On May 10, 2010, Plaintiff filed a response to the Report-Recommendation, which was docketed as an "Objection." (Dkt. No. 7.) In his response, Plaintiff argues that he made a "procedural mistake" in filing this action as a separate proceeding. (Id.) He explains that he made the mistake because he believed he had exhausted the right to amend his Complaint in his prior action, Scheidel v. Fed. Deposit Ins. Corp., No. 5:09-CV-0114 (N.D.N.Y). (Id.) As a result, Plaintiff requests that the Court withdraw this action and file it as a "cross-complaint" in Case No. 5:09-CV-0114. (Id.)

Earlier today, the Court issued a Decision and Order in the related case of Scheidel v. Fed. Deposit Ins. Corp., No. 5:09-CV-0114 (N.D.N.Y.), dismissing Plaintiff's Amended Complaint in its entirety. In that Decision and Order, the Court found, among other things, as follows: (1) Plaintiff's claim for money damages against the FDIC arising out of the FDIC's alleged violation of the Ex Post Facto Clause is a Bivens claim that is not actionable against the FDIC; (2) even if the claim were actionable, Plaintiff failed to allege facts plausibly suggesting that the FDIC violated the Ex Post Facto Clause; (3) Plaintiff's claim alleging a constitutional violation premised on the Fourteenth Amendment is not actionable because the FDIC is not a state actor; (4) Plaintiff's Fifth Amendment claim is a Bivens claim that is not actionable against the FDIC; (5) Plaintiff did not have a property right in his employment offer, nor a "Fifth Amendment right under New York State law" (or any right under federal or state law) that was violated as a result of the FDIC deeming his certificate of relief of disabilities invalid; (6) Plaintiff failed to allege facts plausibly suggesting a claim for either deprivation of future employment or interference with prospective economic advantage; (7) even if Plaintiff had alleged facts plausibly suggesting a claim for deprivation of future employment or interference with prospective economic advantage, such a claim is specifically barred by the FTCA; (8) Section 702 of the Administrative Procedure Act ("APA") does not confer jurisdiction to this Court to award Plaintiff monetary damages on his claim that the FDIC "unlawful[ly] interpret[ed]" 12 C.F.R. 336 sub part B; (9) to the extent that Plaintiff seeks relief that is not monetary, because Plaintiff's "unlawful interpretation" claim is cognizable under Section 1346(b), the FDIC "cannot be sued in its own name"; and (10) 12 C.F.R. § 336.4 is not an "unlawful" regulation.

II. APPLICABLE LEGAL STANDARDS

A. Standard of Review Governing a Report-Recommendation

When specific objections are made to a magistrate judge's report-recommendation, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).*fn1

When only general objections are made to a magistrate judge's report-recommendation, the Court reviews the report-recommendation for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999).*fn2 Similarly, when a party makes no objection to a portion of a report-recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducing ...


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