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Alexander v. State

United States District Court, N.D. New York

August 30, 2017

CRAIG ALEXANDER Plaintiff,
v.
STATE OF NEW YORK; ONEIDA INDIAN NATION POLICE; ANDREW WILMONT, NYS Police Investigator; FNU O'HANLON, NYS Police Officer; UNKNOWN STATE POLICE OFFICER #1; UNKNOWN STATE POLICE OFFICER #2; ROBERT NOLAN, Oneida Indian Nation Police Investigator; DAVID JONES, Oneida Indian Nation Police Officer; and ONEIDA INDIAN NATION POLICE BUREAU OF INVESTIGATION, Defendants.

          CRAIG ALEXANDER Plaintiff, Pro Se.

          DECISION AND ORDER

          GLENN T. SUDDABY, Chief United States District Judge.

         Currently before the Court, in this civil rights action filed pro se by Craig Alexander (“Plaintiff”) against the nine above-captioned entities and individuals (“Defendants”), are the following: (1) United States Magistrate Judge Andrew T. Baxter's Report-Recommendation recommending that (a) Plaintiff's unreasonable-search and deprivation-of-counsel claims against Defendants Wilmont and O'Hanlon be sua sponte dismissed without prejudice to renewal after Defendants' criminal conviction is reversed, pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), (b) Plaintiff's claims against Defendants Unknown State Police Officer #1 and Unknown State Police Officer #2 be sua sponte dismissed without prejudice for lack of personal involvement, (c) Plaintiff's claims against the State of New York, Oneida Indian Nation Police, and the Oneida Indian Nation Police Bureau of Investigation be sua sponte dismissed with prejudice based on sovereign immunity, and (d) Plaintiff's excessive-force claims against Defendants Nolan and Jones be permitted to proceed; and (2) Plaintiff's Objection to the Report-Recommendation. (Dkt. No. 6.)

         I. PLAINTIFF'S OBJECTIONS

         Generally, in his Objections, Plaintiff asserts three arguments: (1) Heck contains an exception for claims that, if successful, would not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff (e.g., a claim of an unreasonable search that produced evidence that was relied on at trial only because of the independence-source doctrine or inevitable-discovery doctrine); (2) here, Plaintiff's unreasonable-search and deprivation-of-counsel claims against Defendants Wilmont and O'Hanlon fall within that exception, because “[h]is claims against Defendants Wilmont and O'Hanlon stem exclusively from the intimidation of their outrageous conduct that put Plaintiff in fear for his life and caused the ongoing emotional and psychological issues that haunt Plaintiff to this day, ” and “[t]here was sufficient evidence obtained outside of (and untainted by) this arrest on which a guilty verdict could have been obtained”; and (3) in any event, even if his claims are deficient, the Court should afford him an opportunity to amend them prior to dismissal because he is a pro se litigant. (Dkt. No. 5.)

         II. STANDARD OF REVIEW

         When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific, ” the objection must, with particularity, “identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c).[1]When performing such a de novo review, “[t]he judge may . . . receive further evidence. . . .” 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance.[2] Similarly, a district court will ordinarily refuse to consider argument that could have been, but was not, presented to the magistrate judge in the first instance. See Zhao v. State Univ. of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.”) (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F.Supp.2d 311, 312-13 (W.D.N.Y. 2009) (“In this circuit, it is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.”) (internal quotation marks omitted).

         When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b)(2), (3); Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999). Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.[3] Finally, when no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id.[4]

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

         III. ANALYSIS

         After carefully reviewing the relevant papers herein, including Magistrate Judge Baxter's thorough Report-Recommendation, the Court can find no clear error in those portions of the Report-Recommendation to which Plaintiff did not specifically object: Magistrate Judge Baxter employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the portions of the Report-Recommendation to which Plaintiff did not specifically object are accepted and adopted in their entirety for the reasons stated therein.

         With regard to the portion of the Report-Recommendation to which Plaintiff did specifically object, the Court finds no error in the Magistrate Judge Baxter's finding that Plaintiff's first two claims are defective for the reasons stated in the Report-Recommendation. As for Plaintiff's request for a chance to amend those claims, the Court has trouble conceiving of factual allegations consistent with those asserted in support of Plaintiff's first two claims that would (1) not invalidate his conviction, and (2) still give rise to an actionable unreasonable-search claim under the Fourth Amendment and deprivation-of-counsel claim under the Sixth Amendment against Defendants Wilmont and O'Hanlon. The Court notes that the reasons the evidence produced by the allegedly unreasonable search and deprivation of counsel were admitted and relied on at trial were not the independence-source doctrine or inevitable-discovery doctrine. See United States v. Alexander, 14-CR-0453, Decision and Order at 6-10, 13-15 (N.D.N.Y. filed March 1, 2016) (Suddaby, C.J.) (denying defendant's motion to suppress evidence recovered from his vehicle); United States v. Alexander, 14-CR-0453, Decision and Order at 4-7 (N.D.N.Y. filed Apr. 13, 2016) (Suddaby, C.J.) (denying defendant's motion to suppress the admission of his post-arrest statements that were allegedly made in violation of his Fifth and Sixth Amendment rights). Moreover, once the factual allegations asserted in support of the first two claims are stripped of facts that would invalidate his conviction, they appear likely to fail to state a claim-despite how much Plaintiff adds to them allegations of “intimidation” and “outrageous conduct.” However, the Court is unable at this point to find that an amendment would be futile, and the Court is mindful of the opportunity it must give a plaintiff to correct his pleading defects to the extent they are not substantive. Cresci v. Mohawk Valley Cmty. College, No. 15-3234, 2017 WL 2392470, at *3 (2d Cir. 2017). As a result, the Court will permit Plaintiff a reasonable opportunity to cure the defects in these claims before dismissing them.

         ACCORDINGLY, it is

         ORDERED that Magistrate Judge Baxter's Report-Recommendation (Dkt. No. 4) is ACCEPTED and ADOPTED as modified by ...


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