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Marsalis v. Reed

United States District Court, E.D. New York

August 23, 2017

CAPTAIN REED, et al., Defendant.


          SANDRAL. TOWNES United States District Court.

         In a report and recommendation dated June 14, 2017 (the "R&R"), Magistrate Judge Cheryl L. Pollak denied a pro se motion brought by a non-party jailhouse lawyer, Howard E. Leventhal, who sought to reopen and intervene in this action in order to recover money which plaintiff Jamel Marsalis ("Plaintiff) agreed to give him in exchange for his assistance in prosecuting this action. Leventhal now objects to the R&R, essentially arguing that Judge Pollak failed to rule upon his request for alternative relief: an order directing the Clerk of Court to file a proposed complaint attached to his motion papers as an entirely new case. The Court now considers de novo Leventhal's request for alternative relief and, for the reasons set forth below, declines to grant that relief.


         In August 2014, Plaintiff commenced this civil rights action against defendant Captain Reed, alleging that Reed and other corrections officers assaulted him while plaintiff was incarcerated on Rikers Island. Although Plaintiff first requested pro bono counsel in a letter dated March 9, 2015, he proceeded pro se until mid-October 2016, when Brett Dignam of Morningside Heights Legal Services, Inc. ("MHLS"), a legal clinic operated by the Columbia University School of Law, filed a notice of appearance on his behalf. About six months later, this action settled. The parties filed a stipulation and order of dismissal on March 31, 2017, and the case was closed.

         In mid-May 2017, Leventhal sent this Court a "Petition, " seeking to reopen the case pursuant Rule 60(b)(3) of the Federal Rules of Civil Procedure and to intervene in the action pursuant to Rule 24(b)(2). The Petition also sought, in the alternative, an order directing the Clerk of Court to accept for filing a civil complaint against Plaintiff, the City of New York, two attorneys who represented the City in this action, MHLS, Dignam, a law student working under Dignam, Columbia University, and various Doe directors and regents. A copy of Leventhal's proposed complaint was attached to his Petition as Exhibit A.

         The facts relating to Leventhal's motion to reopen and intervene were set forth in some detail in the proposed complaint. According to that document, Leventhal, a "non-attorney, " had assisted his fellow inmate, Plaintiff, with this litigation both prior to and after the appearance of Dignam. That assistance was allegedly rendered pursuant to an agreement in which Plaintiff agreed to pay Leventhal ten percent of the money he recovered from the litigation or $50, 000, whichever was greater. Alleging that this action settled for $2, 750, 000, Leventhal seeks $275, 000 in "actual damages" plus punitive damages of $875, 000. The proposed complaint expressly states that "[t]his matter should be assigned to Judge Pollak." Petition, Ex. A, p. 2.

         Although the Court did not formally refer Leventhal's Petition to the magistrate judge, Judge Pollak obtained the parties' response to the Petition and filed the R&R, in which she recommended denying Leventhal's motions. With respect to the motion to reopen, Judge Pollak noted that Rule 60 affords relief to non-parties only if they are "sufficiently connected and identified" with the action that the non-party seeks to reopen. R&R, p. 4 (quoting Baker v. Gates, 638 Fed.Appx. 25, 28 (2015)(summary order)). Judge Pollak held that Leventhal had failed to allege that he was sufficiently connected. Id., p. 5. With respect to the motion to intervene, Judge Pollak noted (1) that Rule 24(b)(2)-the provision to which Leventhal cited-was inapplicable because it governed intervention by a government officer or agency and (2) that Rule 24(b)(1) required a prospective intervenor to have a claim that shared a "common question of law or fact" with the main action. Id., pp. 5-6. The magistrate judge held that Leventhal's proposed complaint did not share common questions of law or fact with Plaintiffs pleadings. Id., p. 6.

         Judge Pollak did not expressly address Leventhal's request for an order directing the Clerk of Court to file his proposed complaint as a completely new action. However, in the course of addressing the motion to reopen, she stated: "To the extent that Mr. Leventhal seeks to bring a breach of contract action against [P]laintiff, he may do so in a separate state court action." Id., p. 5. This statement implied that Leventhal did not have a basis for alleging federal jurisdiction and/or a federal cause of action against the defendants named in the proposed complaint.

         Leventhal's Objections

         Less than a week after Judge Pollak issued her R&R, Leventhal, proceeding pro se, filed a one-page letter entitled "Response to Report and Recommendation dated June 14, 2017." In that document, Leventhal states that his only objection to the R&R is "that failing to proceed in the way I have proposed will derogate judicial economy." After implying that it would have been more efficient to reopen this case and to let him intervene, Leventhal renews his request that the Court transmit his proposed complaint "to the Clerk with instructions to file [it] as a new case ...." Letter to Hon. Judge Cheryl Pollak, dated June 20, 2017. Leventhal tacitly acknowledges that he has not yet filed a application to proceed in forma pauperis, suggesting that the Clerk of Court be directed to send him "the Court's form for IFP status ...." Id.


         The Federal Rules of Civil Procedure provide that "a district judge must determine de novo any part of [a] magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(B). An objection filed by a pro se litigant must be read broadly since "[i]t is well established that the submissions of a pro se litigant must be construed liberally and interpreted 'to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)). Upon de novo review, the Court may "accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3).

         Read liberally, Leventhal's "Response to [the] Report and Recommendation dated June 14, 2017" objects to Judge Pollak's failure to grant the alternative relief that he requested in his Petition. Leventhal's submission specifically requests that the Court direct the Clerk to file his proposed complaint as a new case. He further requests that the Clerk be directed to send him a form for requesting in forma pauperis status.

         The Court has considered these requests de novo and declines to grant the requested relief. Federal law requires that a "court... review, before docketing, ... a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C.§ 1915A. Upon that review, the court must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-(1) is frivolous, malicious, or fails to state a ...

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