Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Frankel v. New York State Office of Children & Family Services

United States District Court, S.D. New York

March 23, 2015

HARLAN FRANKEL, Plaintiff,
v.
NEW YORK STATE OFFICE OF CHILDREN & FAMILY SERVICES, GLADYS CARRION, RICHARD TRUDEAU, POLA EISENSTEIN-ROSAN, KIETH BERGMANN, MICHAEL DECELLE, BERNETT MARION, EMMILINE MURPHY, and LOIS SHAPIRO, Defendants.

MEMORANDUM AND ORDER

DEBORAH A. BATTS, District Judge.

This matter is before the Court on a Report and Recommendation from United States Magistrate Judge Ronald L. Ellis dated April 29, 2013, which recommends granting Defendants' Motion to Dismiss and entering judgment for Defendants. Plaintiff filed timely objections to the Report. For the reasons stated herein, this Court ADOPTS the Report as modified herein, GRANTS Defendants' Motion to Dismiss, and directs the Clerk of Court to enter judgment for Defendants.

I. Background

Pro se Plaintiff, Harlan Frankel, filed a complaint against the New York State Office of Children & Family Services ("OCFS") and eight individual defendants asserting claims under 42 U.S.C. § 1983 for purported retaliation in violation of the First Amendment of the United States Constitution, and for alleged violations of the Due Process Clause of the Fourteenth Amendment and Article 1, Section 6 of the New York State Constitution. Plaintiff also brought common law claims for intentional infliction of emotional distress. Defendants moved to dismiss, and the Honorable Ronald L. Ellis issued a Report recommending that this Court grant Defendants' Motion to Dismiss in its entirety ("Report"). The Court incorporates the recitation of the facts as provided by Judge Ellis in his Report.

II. Discussion

A. Standard of Review for a Report and Recommendation

"Within fourteen days after being served with a copy [of a Magistrate Judge's Report and Recommendation], a party may serve and file specific written objections to the proposed findings and recommendations." Fed.R.Civ.P. 72(b)(2); accord 28 U.S.C. § 636(b)(1)(c). The Court may adopt those portions of the Report to which no timely objection has been made, as long as there is no clear error on the face of the record. Wilds v. United Parcel Serv., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003) (citation omitted). A district court must review de novo "those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). "To the extent, however, that the party makes only conclusory or general arguments, or simply reiterates the original arguments, the Court will review the Report strictly for clear error." Indymac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No. 07-CV-6865, 2008 WL 4810043, at *1 (S.D.N.Y. Nov. 3, 2008) (citation omitted); see also Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y. 2008) ("Reviewing courts should review a report and recommendation for clear error where objections are merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition.") (citation and internal quotation marks omitted).

While 28 U.S.C. § 636(b)(1) and Rule 72(b) give the Court discretion to consider additional material that was not submitted to the magistrate judge, Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998), a party has no right to present additional evidence when the party provides no justification for not offering the evidence in its submissions to the magistrate. See, e.g., Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers, 894 F.2d 36, 40 n.3 (2d Cir. 1990); Azkour v. Little Rest Twelve, Inc., No. 10 Civ. 4132, 2012 WL 1026730, at *2 (S.D.N.Y. Mar. 27, 2012) ("[C]ourts generally do not consider new evidence raised in objections... absent a compelling justification for failure to present such evidence to the magistrate judge.") (internal quotations omitted). Accepting new evidence is disfavored absent a compelling reason because doing so "would reduce the magistrate's work to something akin to a meaningless dress rehearsal." Vega v. Artuz, No. 97 Civ. 3775, 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30, 2002) (citations and internal quotation marks omitted). Despite the general leniency accorded to pro se parties, courts generally do not allow pro se parties to litigate matters in their objections that were not presented to the magistrate judge. Howell v. Port Chester Police Station, No. 09 Civ. 1651, 2010 WL 930981, at *1 (S.D.N.Y. Mar. 15, 2010); see also Litchmore v. Williams, 11 CIV. 7546, 2013 WL 3975956, at *2 (S.D.N.Y. Aug. 5, 2013) (collecting cases).

After conducting the appropriate levels of review, the Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate. 28 U.S.C. § 636(b)(1)(C).

B. The Report's Recommendation

Judge Ellis' Report recommends that: (1) Plaintiff's federal claims against OCFS and the individual Defendants sued in their official capacities be DISMISSED because they are barred by the Eleventh Amendment; (2) Plaintiff's claims under 42 U.S.C. § 1983 that occurred prior to November 4, 2008, be dismissed because they are time-barred by the three-year statute of limitations; (3) Plaintiff's intentional infliction of emotional distress claim be dismissed because it is barred by New York's one-year statute of limitations; (4) Plaintiff's First Amendment retaliation claims be dismissed because the allegations in the complaint do not establish that Plaintiff engaged in constitutionally protected speech and was subjected to adverse employment action as a result; (5) Plaintiff's due process claims be dismissed because Plaintiff failed to pursue a New York Civil Practice Law and Rules Article 78 proceeding as an adequate post-resignation remedy; (6) Plaintiff's claims against Defendants Carrion and Murphy be dismissed because Plaintiff failed to allege that Carrion and Murphy were directly or personally responsible for the relevant events; and (7) Plaintiff's claims against the individually named defendants be dismissed because they are entitled to qualified immunity. (Report 2-3.) The Court will analyze each of the Report's recommendations in conjunction with Plaintiff's objections.

1. Standard

Defendants moved to dismiss under Rule 12(b)(1) and 12(b)(6). The Report analyzed the 12(b)(1) motion first, because dismissal for lack of subject matter jurisdiction would render all other issues moot. Neither party objected to the standards used to analyze the motion under Federal Rule of Civil Procedure 12(b)(1) and (6) or that Judge Ellis ruled on the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.