United States District Court, E.D. New York
MEMORANDUM AND ORDER
SANDRAL. TOWNES United States District Court.
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.
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.
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.
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.
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.
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.
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
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).
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.
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