Washington v. Pelella

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MALCOLM WASHINGTON, Plaintiff, -v- 3:25-CV-229 WILLIAM C. PELELLA, Defendant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - APPEARANCES: OF COUNSEL: MALCOLM WASHINGTON Plaintiff, Pro Se 1903 East Main Street Endicott, NY 13760 DAVID N. HURD United States District Judge ORDER ON REPORT & RECOMMENDATION On February 20, 2025, plaintiff Malcolm Washington (“plaintiff”), acting pro se, commenced an action against defendant William C. Pelella1 (“defendant”), pursuant to 42 U.S.C. § 1983 , for the denial of his due process rights when defendant removed a hearing on plaintiff’s Criminal Procedure Law section 440.10 motion to vacate his conviction from Broome County 1 Defendant is a Binghamton City Court Judge. Court to Binghamton City Court.2 Dkt. No. 1. Thereafter, plaintiff filed a motion to proceed in forma pauperis (“IFP Application”), which was granted. Dkt. Nos. 3, 7. On March 28, 2025, U.S. Magistrate Judge Daniel J. Stewart advised by Report & Recommendation (“R&R”) that plaintiff’s complaint be dismissed with prejudice and the matter closed. Dkt. No 8. Judge Stewart advised that: (1) the defendant is entitled to judicial immunity as the actions pertaining to plaintiff’s claim did not occur outside of his judicial capacity; and (2) that leave to amend would be futile in light of defendant’s judicial immunity.3 Id. at 4–6. Plaintiff has not filed any objections and the deadline to do so has passed. See Dkt. No. 8. Instead, plaintiff filed a notice of appeal with the Second Circuit Court of Appeals seeking appellate review of Judge Stewart’s R&R. Dkt. Nos. 9, 10. The Second Circuit has since ordered plaintiff to rile a response setting out the basis for his appeal or to withdraw his appeal. Dkt. No. 11. 2 This is not plaintiff’s first time filing a claim against defendant. See Washington v. Pelella, No. 8:21-CV-768. 3 Judge Stewart also noted that, in addition to defendant’s judicial immunity, dismissal is also warranted here based on the relevant statute of limitations. Dkt. No. 8 at 6, n. 2. The applicable statute of limitations for claims under § 1983 is three years. See e.g., Murphy v. Lynn, 53 F.3d 547, 548 (2d Cir. 1995). Per the complaint, the alleged violation of plaintiff’s due process rights occurred in October 2021. Dkt. No. 8 at 6, n. 2; see also Dkt. No. 1 at 3. Therefore, Judge Stewart properly concluded that this action was commenced more than three years after the alleged violation and thus untimely. Ordinarily, a notice of appeal divests the district court of jurisdiction. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). But the trial court is not divested of its jurisdiction when the appeal is frivolous, untimely, or otherwise defective. See, e.g., China Nat’l Chartering Corp. v. Pactrans Air & Sea, Inc., 882 F. Supp. 2d 579, 595 (S.D.N.Y. 2012). Judge Stewart’s R&R remains pending before this Court. Dkt. Nos. 9, 10. The Court has not entered an order accepting or rejecting the R&R. Thus, plaintiff’s attempt to take a direct appeal from the pending R&R renders his appeal “otherwise defective” because the R&R is not an appealable final order. See, e.g., LCS Grp., LLC v. Shire LLC, 2019 WL 7824613 , at *1 (2d Cir. Nov. 12, 2019) (refusing to exercise jurisdiction over pending report and recommendation); Juste v. Sessions, 2017 WL 3754208 (2d Cir. Apr. 26, 2017) (dismissing appeal sua sponte for want of jurisdiction where plaintiff attempted to appeal from report and recommendation).4 Accordingly, this Court still has jurisdiction to consider whether to adopt, modify, or reject the pending R&R. Judge Stewart’s R&R explicitly instructed plaintiff that any objections to the R&R must be filed within fourteen (14) days and that plaintiff’s failure to 4 Recognizing as much, the Second Circuit has directed petitioner to explain the basis for jurisdiction or withdraw the appeal. Dkt. No. 11. object would preclude appellate review of the R&R. Dkt. No. 8. As noted above, plaintiff has not filed any timely objections. Supra. Therefore, this Court will review the R&R for clear error.5 Emrit, 2024 WL 308337 , at *3 (citation omitted). Upon review for clear error, Judge Stewart’s R&R is accepted and will be adopted in all respects. See FED. R. CIV. P. 72(b). Therefore, it is ORDERED that 1. The Report & Recommendation (Dkt. No. 8) is ACCEPTED and ADOPTED in all respects; 2. Plaintiff’s complaint (Dkt. No. 1) is DISMISSED with prejudice pursuant to 28 U.S.C. § 1915 (e)(2)(B); 3. The Clerk of the Court is directed to enter a judgment dismissing this action; and 4. The Clerk of the Court is directed serve a copy of this Order on plaintiff by regular mail. 5 While pro se plaintiffs are generally held to more lenient standards, Emrit v. Grammys Awards on CBS, 2024 WL 308337 , at *3 (N.D.N.Y. June 21, 2024) (citation omitted), they are not completely relieved of their compliance from compliance with the “relevant rules of procedural and substantive law.” Kauffman v. New York Presbyterian Hosp., 2025 WL 50018 , at *4 (S.D.N.Y. Jan. 8, 2025) (citation omitted). The Clerk of the Court is further directed to terminate the pending motion. IT IS SO ORDERED. David N fHurd U.S. Disfrict Judge Dated: April 30, 2025. Utica, New York. -5-