United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge.
matter is before the Court upon the Report and Recommendation
(“R&R”) filed by Magistrate Judge Michael J.
Roemer on March 23, 2016, recommending that the Motion for
Summary Judgment filed by the City of Buffalo (“the
City”), Buffalo Police Department (“BPD”)
Officer Ann Vanyo (“Officer Vanyo”),
BPD Officer Hiba Khalil (“Officer Khalil”)
(collectively, “Defendants”) be granted in its
entirety. On April 12, 2016, Jassim Al-Mohammedi
(“Plaintiff”), through his attorney, filed Rule
72(b) Objections to the Magistrate's March 23, 2012 [sic]
Summary Judgment Report and Recommendation
(“Obj.”) (Dkt #36). On April 29, 2016, Defendants
filed a Response to Plaintiff's Rule 72(b) Objections
reasons discussed below, the Court denies Plaintiff's
Objections except to the limited extent as discussed in
Section III.C, below. Nonetheless, as discussed further
below, the Court agrees with R&R in all other respects
and adopts the Magistrate Judge's recommendation to
dismiss Plaintiff's Complaint in its entirety.
Standard of Review
reviewing the R & R of a dispositive matter from a
magistrate judge, the district court ‘may adopt those
portions of the Report to which no objections have been made
and which are not facially erroneous.'”
Nansaram v. City of N.Y., No. 12-CV-5038 NGG RLM,
2015 WL 5518270, at *2 (E.D.N.Y. Sept. 17, 2015) (quotation
and citation omitted); see also Fed.R.Civ.P. 72(b),
Advisory Comm. Notes (when a party makes no objection, or
only general objections to a portion of an R&R, the
district judge reviews it for clear error or manifest
injustice). An R&R 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).
preserve a claim for review by the district court, the party
must make sufficiently specific objections to the R&R.
E.g., Mario v. P & C Food Mkts., Inc.,
313 F.3d 758, 766 (2d Cir. 2002). When, however, a party
makes specific objections, the district judge must undertake
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), and “may . . . receive further
evidence[.]” Id.; see also Grassia v.
Scully, 892 F.2d 16, 19 (2d Cir. 1989) (discussing
Plaintiff's Objections Based on His Previous Arguments
are Insufficient (Obj. ¶ 1)
states that he “repeats and maintains each and every
argument and point of law as set forth in [his] underlying
papers opposing [D]efendants' summary judgment motion,
incorporated here by reference[.]” (Obj. ¶ 1). As
the Second Circuit has explained, “[m]erely referring
the court to previously filed papers or arguments does not
constitute an adequate objection under either Fed.R.Civ.P.
72(b), ” Mario, 313 F.3d at 766 (footnote
omitted), or under this District's Local Rules. The Court
declines Plaintiff's to request re-examine the arguments
he previously made to the Magistrate Judge in considering the
summary judgment motion. See Paterson-Leitch Co. v.
Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985,
990-91 (1st Cir. 1988) (“We hold categorically that an
unsuccessful party is not entitled as of right to de
novo review by the judge of an argument never seasonably
raised before the magistrate.”) (citation omitted).
The R&R's Allegedly Erroneous Characterization of the
Incident as a “Domestic Dispute” (Obj. ¶
asserts that the Magistrate Judge erroneously characterized
the incident at issue in his Complaint as a “domestic
dispute.” (R&R at 1; Obj. ¶ 6). This
objection, while specific, is baseless. Plaintiff asserts
that on July 14, 2012, he was “arrested outside a
building he owned by . . . [Officer] Vanyo and others,
including off duty . . . [Officer] Khalil, ” who had
“arrived at the home along with Plaintiff's wife,
Eness Noairy,  who had just spent the night in jail after
trashing the couple's apartment, and with Vanyo's
assistance seized the couple's two children with no legal
authority to do so.” (Obj. ¶¶ 2, 6).
Plaintiff admits that “Noary informed [Officer] Vanyo
that she had gone to the house ‘to get children and
personal belongings[.]'” (Plaintiff's Rule 56
Counterstatement in Opposition to Defendants' Motion for
Summary Judgment (“Pl's Counterstmt”), Resp.
to #4). These and other facts, as recited by Plaintiff in his
Objections, show that the incident in question accurately was
characterized as a “domestic
dispute.”. Finally, Plaintiff's objection to the
term “domestic dispute” is disingenuous given
that Plaintiff's attorney used that same term in posing
questions to Officer Vanyo during her deposition.
(E.g., Deposition Transcript of Ann Vanyo
(“Vanyo Tr.”) at 15:5-11).
Failure to Construe the Facts in the Light Most Favorable to
Plaintiff (Obj'ns ¶¶ 6-7)
next objects that the Magistrate Judge “state[d] as a
fact that Noary ‘reported to the [BPD] that [Plaintiff]
had been violent and had threatened her.'” (Obj.
¶ 7 (quoting R&R at 2)). According to Plaintiff, the
Magistrate Judge's mention of the Noary's complaint
to the BPD was a “misleading construction of the facts,
and a failure to construe the admissible evidence in the
light most favorable to [him][, ]” (id.),
because the police report filed by Noary only was completed
after Plaintiff's arrest, and Noary “was not even
present at the scene until she arrived with police
officers[.]” (Id.). The Court has reviewed the
record as it stood at the time the R&R was issued, in
conjunction with the deposition transcript of Officer Vanyo,
which was not before the Magistrate Judge. The Court is
compelled to conclude that the record does not establish that
Officer Vanyo “undisputedly” was given
information by Noary, prior to the arrest, about
Plaintiff's alleged threats toward Noary. However, the
record does indicate that Officer Vanyo was provided
information, prior to the incident, that Plaintiff had been
violent. Thus, while additional discussion of the record
evidence is required, the Court ultimately agrees with the
R&R's qualified immunity analysis regarding the false
arrest claims, as discussed further infra.
Court first turns to an examination of the record to assess
the facts available to Officer Vanyo at the time of the
arrest and immediately before it, see Caldarola, 298
F.3d at 162. In support of their Motion for Summary Judgment,
Defendants produced the Buffalo Police Complaint Summary
Report (Dkt #25-2) regarding the “family dispute”
at 179 Military Road to which Officer Vanyo and Officer Jay
A. Reuther were dispatched on July 14, 2012. The
dispatcher's notes regarding the originating call from
the complainant read as follows:
C/C IN BANK OF AMERICA LOT @ AUSTIN/MILITARY IN RED SUV . . .
REQ[UESTED] ESCORT TO GET CHILDREN/PROPERTY FROM HOUSE,
HUSBAND HAS BEEN VIOLENT.
(Dkt #25-2, p. 1 of 1) (capitals and ellipsis in original).
Officer Vanyo was dispatched as the “Primary”
officer at 8:20 p.m., and Officer Reuther was dispatched a
few seconds later. (Id.; see also Buffalo
Police Dispatch Monitor-Unit History Report (Dkt #25-3, p. 1
of 6)). The record evidence thus supports the R&R's