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Paul Topolski v. J.J. Cottrell

December 30, 2011

PAUL TOPOLSKI, PLAINTIFF,
v.
J.J. COTTRELL, POLICE OFFICER, TOWN OF CICERO POLICE DEPARTMENT, DEFENDANT.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On October 7, 2011, Plaintiff commenced a civil rights action pursuant to 42 U.S.C. § 1983, alleging that, on September 9, 2009, Defendant used excessive force during his arrest in violation of both the United States Constitution and New York State Law. In his complaint, Plaintiff also requests a temporary restraining order pursuant to Rule 65 of the Federal Rules of Civil Procedure preventing Defendant from filing Chapter 11 Bankruptcy. In an October 28, 2011 Order and Report-Recommendation, Magistrate Judge Baxter granted Plaintiff's application to proceed in forma pauperis but denied his request for a temporary restraining order.

Currently before the Court are Plaintiff's "objections" to Magistrate Judge Baxter's Order and Report-Recommendation.*fn1

II. BACKGROUND

In his affidavit in support of his "Order to Show Cause," Plaintiff claims that,

[o]n September 9, 2009, at approximately 7:30 pm, defendant

Cottrell did have a "preconceived motive" and "exclusive control" of intentionally causing physical injury to plaintiff, and did act with reckless intent while performing his duties under color of law, that once plaintiff came to a stop, Cottrell did maliciously, wontonly and unnecessarily use excessive force, which caused permanent physical injuries to plaintiff, all because of annonymous [sic] 911 call report of a blue ford pickup, . . . [which] was swerving on the road at 1809 hrs[.]

See Dkt. No. 14-2 at ¶ 4. Plaintiff claims that Defendant's conduct caused him serious physical injury and that the facts alleged show that he will likely succeed on the merits of his underlying claims. See id. at ¶¶ 6-7.

In order to ensure that he will be able to collect on any judgment he receives against Defendant in this matter, Plaintiff seeks injunctive relief. See id. at ¶ 11. Specifically, Plaintiff seeks an order "prohibiting and restraining" Defendant from the following: "Transfer, encumber, assign, remove, withdraw, dis[b]urse, or dispose of his assets (including but not limited to) diss[i]pation of any property, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, boats, recreational vehicle, retirement accounts or bankruptcy." See id.

In his October 28, 2011 Order and Report-Recommendation, Magistrate Judge Baxter found that "Plaintiff has not established any of the factors required for temporary injunctive relief." See Dkt. No. 4 at 3. Magistrate Judge Baxter found that Plaintiff has not made clear why Defendant would be filing for bankruptcy and has failed to show that this harm, which is unrelated to the substance of Plaintiff's complaint, is "certain" or "imminent." See id. at 4. Finally, Magistrate Judge Baxter found that Plaintiff has not established that he would be irreparably injured even if Defendant did file for bankruptcy. See id.

III. DISCUSSION

A. Standard of review

When a party files specific objections to a magistrate judge's report-recommendation, the district court makes 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. ยง 636(b)(1). When a party fails to make specific objections, however, the court reviews the magistrate judge's report for clear error. See Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. ...


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