Opinion
6:17-cv-682 (BKS/ATB)
10-24-2017
TOMAS ZAVALIDROGA, individually and as Power of Attorney of Margaret Zavalidroga, Plaintiffs, v. THERESA GIROUARD, et al., Defendants.
APPEARANCES: Tomas Zavalidroga Old Forge, NY Plaintiff, pro se
APPEARANCES:
Tomas Zavalidroga
Old Forge, NY
Plaintiff, pro se Hon. Brenda K. Sannes, United States District Judge :
MEMORANDUM-DECISION AND ORDER
On June 20, 2017, pro se Plaintiff Tomas Zavalidroga ("TZ") commenced this civil rights action under 42 U.S.C. § 1983, "individually and as Power of Attorney [for] Margaret Zavadriloga" ("MZ"), against twenty-one Defendants, including New York Supreme Court Justice Samuel Hester, Town Justice Paul Tryon, MZ's court-appointed guardian Theresa Girouard, the "State-employed Guardianship evaluators" Charles Massoud-Tastor and Stuart Finer, local government units, local law enforcement officials, and private parties. (Dkt. No. 1). The Complaint seeks monetary, injunctive, and declaratory relief, and asserts four "causes of action": (1) under 42 U.S.C. §§ 1981, 1983, and 1985, for alleged deprivation of his "federal rights, property interests," and discrimination; (2) under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution, for alleged deprivation of "due process and significant liberty and property interests"; (3) under state law, for alleged "false arrest and false imprisonment, trespass and conversion of property"; and finally (4) under the International Covenant on Civil and Political Rights (the "ICCPR"), for alleged violations of the "international human rights of the Plaintiff and his privies." (Dkt. No. 1, at 8-10).
This matter was referred to United States Magistrate Judge Andrew T. Baxter, who issued an Order and Report-Recommendation on July 7, 2017. Having reviewed the Complaint pursuant to 28 U.S.C. § 1915(e)(2)—which provides for dismissal of proceedings in forma pauperis if the action is frivolous, fails to state a claim, or seeks monetary relief from an immune defendant—Magistrate Judge Baxter recommended dismissal without prejudice of all the claims brought on behalf of MZ, and dismissal with prejudice of all the claims brought directly by TZ as against all Defendants. (Dkt. No. 4, at 35-36). TZ filed objections to the Report-Recommendation on July 24, 2017.
This Court reviews de novo those portions of the Magistrate Judge's findings and recommendations that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). "A proper objection is one that identifies the specific portions of the [Report and Recommendation] that the objector asserts are erroneous and provides a basis for this assertion." Kruger v. Virgin Atl. Airways, Ltd., 976 F. Supp. 2d 290, 296 (E.D.N.Y. 2013) (quoting DuBois v. Macy's Retail Holdings, Inc., 11-cv-4904, 2012 WL 4060586, at *1, 2012 U.S. Dist. LEXIS 131678, at *3 (E.D.N.Y. Sept. 13, 2012)). Properly raised objections must be "specific and clearly aimed at particular findings" in the Report. Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009). Findings and recommendations as to which there was no properly preserved objection are reviewed for clear error. Id. "To the extent . . . that the party makes only conclusory or general arguments . . . the Court will review the Report strictly for clear error." DiPilato v. 7-Eleven, Inc., 662 F Supp. 2d 333, 339 (S.D.N.Y. 2009).
First, TZ objects to dismissal because the "factual background of the action" cannot be established before "the requisite pre-trial conference" or Defendants' answer, and because the Magistrate Judge cannot provide "for the amending of the pro se Complaint." (Dkt. No. 5, at 1). Magistrate Judge Baxter did not base his dismissal on factual grounds. Instead, he ruled that, as a matter of law, TZ could not represent MZ and that TZ's direct claims should be dismissed for various reasons—including lack of jurisdiction, failure to state a claim, and absolute immunity. (See Dkt. No. 4, at 9-35). The Magistrate Judge's Report-Recommendation contains a thorough and accurate recitation of the relevant facts alleged in the Complaint. (See Dkt. No. 4, at 1-8). TZ's first objection is therefore meritless.
Second, TZ appears to argue that he has alleged new facts and causes of action and is not precluded from relitigating issues decided in prior proceedings. (Dkt. No. 5, at 1). The Report-Recommendation, however, does not discuss preclusion but the distinct Rooker-Feldman doctrine. See Dubin v. County of Nassau, No. 16-cv-4209, 2017 WL 4286613, at *5, 2017 U.S. Dist. LEXIS 159117, at *11 (E.D.N.Y. Sept. 27, 2017) (noting that the Rooker-Feldman "doctrine was once improperly equated with that of res judicata"). TZ's second objection thus provides no basis for rejecting the Report-Recommendation.
TZ also argues that it is "impermissible for a corrupt State Court to create its own procedural justifications and causes of action by negating federally protected contracts." (Dkt. No. 5, at 1). This is not an objection to any specific finding or conclusion in the Report-Recommendation. Accordingly, this argument also fails. --------
Having reviewed the rest of the Report-Recommendation for clear error, the Court adopts the Report-Recommendation in its entirety except for the recommendation that the claims against Defendant Oneida County Sheriff's Deputy Ryan Marshall arising out of the allegedly false arrest and malicious prosecution that occurred on or about February 9, 2016 be dismissed with prejudice. As Magistrate Judge Baxter recognized, the pendency of the state criminal proceeding against TZ warrants this Court's abstention under Younger v. Harris, 401 U.S. 37, 43-54 (1971), but a dismissal under the Younger abstention doctrine is without prejudice to a federal plaintiff's resumption of federal litigation after the state criminal proceeding has ended. See, e.g., Novie v. Village of Montebello, No. 10-cv-9436, 2012 WL 3542222, at *14, 2012 U.S. Dist. LEXIS 115948, at *51 (S.D.N.Y. Aug. 16, 2012) (dismissing a plaintiff's claims without prejudice under the Younger abstention doctrine). Therefore, TZ's complaint is dismissed with prejudice, except for his false arrest and malicious prosecution claims against Defendant Ryan Marshall, which are dismissed without prejudice.
For these reasons, it is hereby
ORDERED that the Report-Recommendation (Dkt. No. 4) is ACCEPTED in its entirety, except for the recommendation that the false arrest and malicious prosecution claims against Defendant Ryan Marshall be dismissed with prejudice; and it is therefore
ORDERED that, to the extent the Complaint (Dkt. No. 1) relates to MZ, that no guardian be appointed, and the Complaint be DISMISSED in its entirety without prejudice; and it is further
ORDERED that, as it relates to TZ, the Complaint (Dkt. No. 1) is DISMISSED WITH PREJUDICE in its entirety as against all Defendants, except for TZ's claims against Defendant Ryan Marshall regarding the alleged February 9, 2016 false arrest and malicious prosecution, which are DISMISSED WITHOUT PREJUDICE; and it is further
ORDERED that the Clerk of Court shall serve a copy of this Memorandum-Decision and Order on Plaintiff in accordance with the Local Rules along with copies of the unpublished decisions cited in this decision.
IT IS SO ORDERED. Dated: October 24, 2017
Syracuse, New York
/s/ _________
Brenda K. Sannes
U.S. District Judge