McBryde-O'Neal v. Polichetti

USONUITTEHDE RSTNA DTIESST RDIICSTT ROIFC TN ECWOU YROTR K

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:

LAVERNE A. MCBRYDE-O’NEAL, :

:

Plaintiff, :

:

-v- : 23 Civ. 10113 (JPC) (RFT)

:

TASK FORCE OFFICER DINO POLICHETTI, et al., : ORDER ADOPTING

: REPORT AND

Defendants. : RECOMMENDATION

:

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JOHN P. CRONAN, United States District Judge:

Plaintiff LaVerne A. McBryde-O’Neal, proceeding pro se, commenced this action on

November 16, 2023. Dkt. 1. Plaintiff’s operative pleading, the Second Amended Complaint,

alleges that a group of local and federal law enforcement officers1 violated her constitutional rights

during a search of her apartment. See Dkts. 65-1 (Second Amended Complaint), 71 (letter

supplementing Dkt. 65-1). Defendants moved to dismiss the Second Amended Complaint for

failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure

12(b)(6). Dkt. 63.

On January 30, 2025, the Honorable Robyn F. Tarnofsky, to whom this case has been

referred for general supervision of pretrial proceedings and dispositive motions, issued a Report

and Recommendation on Defendants’ motion to dismiss. Dkt. 96 (“R&R”). Judge Tarnofsky

recommended that the undersigned deny the motion as to Plaintiff’s claim under 42 U.S.C. § 1983

alleging excessive force in violation of the Fourth Amendment against Defendant Dino Polichetti,

and otherwise grant the motion and dismiss Plaintiff’s remaining claims with prejudice. See id. at

1 The named Defendants in this case are Dino Polichetti, Fernando Bonilla, Keith Ames,

Guarionex Marte, David Comesanas, Michael Ingram, Michael Morris, Jose Ortiz, Joseph Boccia,

and John Dooley. See Dkt. 68.

45-46. For the following reasons, the Court adopts the Report and Recommendation in its entirety.

I. Background

The facts and procedural history of this action are reviewed in detail in the Report and

Recommendation. See R&R at 1-8. Consistent with a judge’s obligation to construe pro se

pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the

“strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d

Cir. 2006) (internal quotation marks omitted), Judge Tarnofsky analyzed the Second Amended

Complaint as asserting claims under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), and 42 U.S.C. § 1983. See R&R at 14-19.

Judge Tarnofsky first rejected Defendants’ argument that they may be sued only under

Bivens and not under Section 1983, because, although some of the Defendants were officers of the

New York City Police Department (“NYPD”), they had been deputized by the U.S. Drug

Enforcement Administration (“DEA”) as federal task force officers and therefore were acting as

federal officers at the time of the incident. Id. at 17. In support of this contention, Defendants

asked Judge Tarnofsky to take judicial notice of “an affidavit”—which was submitted with their

reply brief—“from an administrative employee of the DEA, who states he reviewed DEA records

and attests to the status of Defendants Polichetti, Ortiz, Dooley, Bonilla, Comesanas, Marte,

Ingram, and Ames as deputized federal task force officers and of Defendants Morris and Boccia

as DEA agents.” Id. at 18; see Dkt. 85 (Declaration of Francis H. Dicarlo, Associate Special Agent

in Charge of the DEA). Judge Tarnofsky declined to do so, reasoning that “[a]n affidavit by a

government employee made for litigation purposes is not an official government report or a

government record; nor can the contents of such an affidavit be accurately and readily determined

from reliable sources.” R&R at 18-19. Judge Tarnofsky therefore recommended that this Court

not resolve the question of whether all Defendants were deputized federal agents at the motion to

dismiss stage. Id. at 19.

Judge Tarnofsky next determined that Plaintiff’s Bivens claims are “barred by the

availability of alternative remedies and the novelty of the claims.” Id. at 19-24. Judge Tarnofsky

explained that Congress created a remedy in the Federal Tort Claims Act, under which Plaintiff

could have sought redress and monetary damages for the harms she allegedly suffered. Id. at 19-

21. Judge Tarnofsky further explained that, in the alternative, any Bivens claims based on

Plaintiff’s allegations are barred “because they arise in a new context.” Id. at 21. In particular,

the challenged search was pursuant to a warrant, her excessive force claim presents a new context

for Bivens, her Eighth Amendment claim does not arise from incarceration, her Fifth Amendment

claim does not arise under the Equal Protection Clause, and none of the cases under which the

Supreme Court found a Bivens claim involved the Fourteenth Amendment. Id. at 21-24.

Judge Tarnofsky recommended that this Court not dismiss Plaintiff’s Section 1983 claim

against Polichetti for excessive force because the Second Amended Complaint alleges sufficient

facts “to support a conclusion that Polichetti’s use of force [in shoving Plaintiff into the hallway

of her apartment during the search] was objectively unreasonable under the circumstances.” Id. at

32. Drawing all inferences in Plaintiff’s favor, Judge Tarnofsky reasoned that the alleged facts

“could support a conclusion that no force was necessary; that the force used was out of proportion

to the situation; that the harm was sufficient for a constitutional violation; and that the purpose was

not to maintain or restore discipline.” Id. (citation omitted). Judge Tarnofsky determined that the

Second Amended Complaint otherwise fails to state a Section 1983 claim for the remaining alleged

violations of the Fourth, Fifth, Eighth, and Fourteenth Amendments. Id. at 24-36. Judge

Tarnofsky alternatively determined that qualified immunity barred Plaintiff’s Section 1983 claims,

except as to the excessive force claim against Polichetti. Id. at 36-39.

Judge Tarnofsky also recommended that this Court find that jurisdiction is lacking over

Plaintiff’s claim for return of approximately $50,000 in cash seized during the search because

Plaintiff had filed a petition for remission and had received proper notice of the forfeiture

proceeding. Id. at 39-43; see U.S. (Drug Enf’t Agency) v. One 1987 Jeep Wrangler Auto. VIN #

2BCCL8132HBS12835, 972 F.2d 472, 479 (2d Cir. 1992); Onwubiko v. United States, 969 F.2d

1392, 1398 (2d Cir. 1992), overruled on other grounds by Polanco v. U.S. Drug Enf’t Admin., 158

F.3d 647, 651 (2d Cir. 1998). Finally, Judge Tarnofsky recommended the Court not sua sponte

grant Plaintiff leave to amend her Second Amendment Complaint to replead the dismissed claims,

on the grounds that any amendment would be futile. R&R at 43-45.

The Report and Recommendation, citing both Rule 72 of the Federal Rules of Civil

Procedure and 28 U.S.C. § 636(b)(1), advised the parties that they had fourteen days from service

of the Report and Recommendation to file any objections, and warned that failure to timely file

such objections would result in waiver of any right to object. R&R at 47. The docket further

indicates that the Report and Recommendation was mailed to Plaintiff on January 31, 2025. Under

Rules 6(a)(1)(C), 6(d), and 72(b)(2), Plaintiff’s deadline to file any objections was February 18,

2025. Defendants’ deadline to file any objections was February 13, 2025, under Rule 72(b)(2).

On February 13, 2025, Polichetti timely filed an objection to the Report and

Recommendation, see Dkt. 100 (“Deft. Objection”), and that objection was served on Plaintiff via

mail on February 14, 2025, Dkt. 103. Under Rules 6(d) and 72(b)(2), Plaintiff’s deadline to file a

response to Polichetti’s objection was March 3, 2025. Plaintiff did not respond to Polichetti’s

objection by this deadline.

Plaintiff also did not timely file any objections to the Report and Recommendation, thus

waiving her right to object or to obtain appellate review. See Dkt. 102 at 1 (citing Frank v.

Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Caidor v. Onondaga Cnty., 517 F.3d 601 (2d Cir.

2008)); see also Manley v. N.Y.C. Police Dep’t, No. 05 Civ. 679 (FB), 2005 WL 2664220, at *1

(E.D.N.Y. Oct. 19, 2005) (“[T]he fact that a litigant is proceeding pro se does not exempt that

party from compliance with relevant rules of procedural and substantive law.” (internal quotation

marks omitted)). On February 21, 2025, however, Plaintiff filed two documents through the

Court’s Pro Se Intake Unit, each styled as a “Discovery Motion.” Dkts. 104, 105. The first is

titled “Response to Rule 56 Motion for Summary Judgment,” Dkt. 104, and the second is titled

“Demands,” Dkt. 105.

II. Legal Standard

A district court “may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge” in a Report and Recommendation. 28 U.S.C.

§ 636(b)(1)(C). If a party submits a timely objection to any part of the magistrate judge’s

disposition, the district court will conduct a de novo review of the contested section. Fed. R. Civ.

P. 72(b)(3); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). If no

objections are made, the Court reviews the Report and Recommendation for clear error. See, e.g.,

Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003). “[N]ew arguments

and factual assertions cannot properly be raised for the first time in objections to the report and

recommendation, and indeed may not be deemed objections at all.” Gagliardi v. Prager Metis

CPAs LLC, 738 F. Supp. 3d 469, 475 (S.D.N.Y. 2024). “[W]hen the objections simply reiterate

previous arguments or make only conclusory statements, the court should review the Report and

Recommendation for clear error.” Fischer v. Forrest, 286 F. Supp. 3d 590, 601 (S.D.N.Y. 2018).

III. Polichetti’s Objection

Polichetti advances a “partial objection” to the Report and Recommendation, “object[ing]

to the portions of the R&R recommending that this Court decline to take judicial notice of

Defendant’s status as a deputized DEA task force officer, construe a Section 1983 claim against

him, and allow that claim to proceed to discovery.” Deft. Objection at 1-2. Polichetti asks that

the Court “consider supplemental evidence”—in the form of another declaration from a different

administrative employee of the DEA but now with attached paperwork—which Polichetti contends

establishes “beyond cavil that he was acting as a federal task force officer when he searched

Plaintiff’s apartment.” Id. at 6; see Dkt. 101 (Declaration of Brandon K. Hope, Acting Associate

Special Agent in Charge of the DEA). Polichetti “acknowledges that he did not previously submit

this supplemental evidence” to Judge Tarnofsky, but maintains that he “did not have the

opportunity to directly brief the issue of whether Plaintiff could assert Section 1983 claims against

him,” despite requesting the opportunity to do so. Deft. Objection at 7.

Polichetti does not appear to object to the Report and Recommendation’s conclusion that

judicial notice should not be taken of the deputization declaration from Associate Special Agent

Dicarlo that was submitted in support of his motion to dismiss. See R&R at 17-19; Deft. Objection

at 7 (“Whether or not the Report correctly recommended that the previously submitted declaration

was inadequate . . . Defendant now respectfully asks the Court to consider, either in the context of

this objection or in the context of a renewed motion to dismiss, supplemental evidence, in order to

clarify this matter.”). In fact, Polichetti does not argue that Associate Special Agent Dicarlo’s

declaration—which was first submitted to Judge Tarnofsky in connection with his reply brief and

failed to attach any deputization paperwork or other records—was sufficient to establish his status

as a federal task force officer. Indeed, Polichetti argues that “[c]ourts routinely take judicial notice

of an individual’s federal employment status . . . when the officer submits their deputization

paperwork and records from federal agency databases because those types of documents are

official government records not subject to reasonable dispute.” Deft. Objection at 6 (emphasis

added). Instead of defending his submissions before Judge Tarnofsky, Polichetti asks this Court

to now consider additional evidence concerning his deputization that was not previously presented.

Id. at 6-7; see id. at 7 (“Defendant respectfully requests that the Court (i) consider this supplemental

evidence demonstrating that he was, indeed, operating under federal authority during the search,

and (ii) dismiss any Section 1983 claim remaining against him.”).

A district court has discretion to “receive further evidence” when considering the

recommendation of a magistrate judge. 28 U.S.C. § 636(b)(1). But “courts generally do not

consider new evidence raised in objections to a magistrate judge’s report and recommendation.”

Fischer, 286 F. Supp. 3d at 603. This general practice of district judges to decline to receive

further evidence advances several interests, including discouraging parties from “withhold[ing]

evidence . . . in the expectation of using it before the district judge only if they failed to prevail

before the magistrate judge on a more abbreviated showing,” and “reward[ing] careless preparation

of the initial papers.” Morris v. Amalgamated Lithographers of Am., Local One, 994 F. Supp. 161,

163 (S.D.N.Y. 1998). “The submission of new evidence following [a report and recommendation]

is merited only in rare cases, where the party objecting to a [report and recommendation] has

offered a most compelling reason for the late production of such evidence, or a compelling

justification for its failure to present such evidence to the magistrate judge.” Fischer, 286 F. Supp.

3d at 603 (internal quotation marks omitted).

Polichetti has not provided a sufficient basis for this Court to deviate from its general

reluctance to consider new evidence raised in an objection to a report and recommendation. While

he gestures towards his inability to further brief this issue after Judge Tarnofsky construed the

Second Amended Complaint to assert a Section 1983 claim, the Court is unpersuaded that this

amounts to a “compelling reason” for the late presentation of this evidence, id., for two reasons.

First, as noted, a judge must construe a pro se complaint “liberally with special solicitude”

and interpret that complaint “to raise the strongest claims that it suggests.” Hogan v. Fischer, 738

F.3d 509, 515 (2d Cir. 2013). Defendants’ reply brief specifically addressed Plaintiff’s argument

that “at least some of the Defendants must have been working under state law,” Dkt. 84 at 7, and

the Second Amended Complaint contends that some of the officers involved in the search

“identif[ied] themselves as . . . New York Police personnel,” Dkt. 65-1 at 3. Therefore, it was

reasonably foreseeable that Plaintiff’s pleading would be construed as asserting Section 1983

claims against certain Defendants in their capacities as state officials. Defendants’ failure to

anticipate that Judge Tarnofsky would construe the Second Amended Complaint in that manner

does not constitute a “compelling reason” justifying the production of new evidence at this stage.

Fischer, 286 F. Supp. 3d at 603 (internal quotation marks omitted).

Second, as noted, along with their reply brief, Defendants did file a declaration seeking to

establish the federal deputization of Polichetti and other Defendants, albeit one that Judge

Tarnofsky found insufficient. See Dkt. 85. Polichetti’s decision to make such a filing betrays his

awareness that the issue of deputization was important to his defense and to the disposition of the

motion to dismiss. That Judge Tarnofsky found that declaration, which lacked any supporting

paperwork or other records, wanting does not merit a do-over before this Court. See N.Y.C. Dist.

Council of Carpenters Pension Fund v. Forde, 341 F. Supp. 3d 334, 338 (S.D.N.Y. 2018) (holding

that the objectors’ “omission of documents . . . critical to [the magistrate judge’s] assessment”

lacked any “compelling justification”). Reviewing new evidence that Judge Tarnofsky did not

consider “would reduce the magistrate[ judge]’s work to something akin to a meaningless dress

rehearsal.” Lane Holdings, Inc. v. Kliger-Weiss Infosystems, Inc., No. 17 Civ. 6631 (SJF) (ARL),

2020 WL 5987908, at *2 (E.D.N.Y. Oct. 9, 2020) (collecting cases). The Court therefore declines

to consider the additional declaration from Acting Associate Special Agent Hope.

Polichetti states that “[i]f the Court is not inclined to allow Defendant to submit (either

before this Court or to the magistrate judge) supplemental evidence as to his federal employment

status, Defendant requests that the Court limit discovery in the first instance to the issue of whether

Defendant was deputized as a federal task force officer at the time of the search.” Deft. Objection

at 7. Pursuant to the referral in this case, Judge Tarnofsky is responsible, in the first instance, for

overseeing general pretrial matters, which would include whether to allow limited discovery

concerning this potentially dispositive question.

IV. Plaintiff’s Filings on February 21, 2025

The Court next turns to the two documents that Plaintiff filed on February 21, 2025. Dkts.

104, 105. As explained at supra I, Plaintiff’s deadline to object to the Report and Recommendation

was February 18, 2025. See Fed. R. Civ. P. 6(a)(1)(C), 6(d), 72(b)(2). To the extent that Plaintiff’s

filings were intended to convey objections to the Report and Recommendation, any such

objections were waived by Plaintiff’s failure to timely file them. See Caidor, 517 F.3d at 604-05

(explaining that “failure to object timely to a magistrate[ judge]’s report operates as a waiver of

any further judicial review of the magistrate[ judge]’s decision” and that “pro se litigants generally

are required to inform themselves regarding procedural rules and to comply with them”).

Setting aside the issue of waiver, and even construing Plaintiff’s filings liberally, it is not

clear that either document advances objections to Judge Tarnofsky’s Report and Recommendation.

Both documents are styled as a “Discovery Motion.” Dkts. 104, 105. One is a two-page document

titled “Demands.” Dkt. 105. It lists discovery demands made under Federal Rule of Civil

Procedure 26, and contains no challenges to the Report and Recommendation. See generally id.

The other document, also two pages in length, is titled “Response to Rule 56 Motion for Summary

Judgment.” Dkt. 104. It generally recounts Plaintiff’s version of the events when law enforcement

searched her apartment and describes supposedly malicious actions of one of the attorneys

representing Defendants in this matter. Id. at 1-2. This document concludes, “I knew from the

start that the law would be with corrupt law enforcement. They are protected by Qualified

Immunity.” Id. at 2. If anything, this line seems to acknowledge the validity of Judge Tarnofsky’s

determination that qualified immunity bars the majority of Plaintiff’s claims.

But even if the Court construes Plaintiff’s “Response to Rule 56 Motion for Summary

Judgment” as an objection to the Report and Recommendation, and even ignoring its untimely

filing, the filing still fails to identify any error in the Report and Recommendation. Instead, the

document reiterates the same arguments Plaintiff had advanced to Judge Tarnofsky, which were

duly considered and rejected. Compare, e.g., id. at 1 (“The first main point of this case was not

having a warrant in hand to show me what the warrant entailed for search and seizure.”), with R&R

at 27-28 (concluding that the Second Amended Complaint fails to state a “claim for a Fourth

Amendment violation based on Defendants’ failure to show her the search warrant before

executing it”); Dkt. 104 at 1 (arguing that Defendants’ attorney “never produced the number of

law enforcement officers with NYPD to the court”), with R&R at 4-5 & n.3 (recounting that the

Court issued two Valentin2 orders, which the U.S. Attorney’s Office responded to, and that counsel

for New York City “did not identify any additional NYPD officers who participated in the

incident” beyond those identified by the U.S. Attorney’s Office); Dkt. 104 at 1-2 (complaining of

mistreatment of Plaintiff during the search and of damage to her apartment), with R&R at 28-30,

33-34 (addressing these points).

“To the extent that the objecting party . . . simply reiterates the original arguments, the

court will review the report and recommendation strictly for clear error.” Gagliardi, 738 F. Supp.

3d at 475 (internal quotation marks omitted). “Clear error is present when ‘upon review of the

entire record, [the court is] left with the definite and firm conviction that a mistake has been

committed.’” Microbot Med., Inc. v. Mona, 688 F. Supp. 3d 88, 94 (S.D.N.Y. 2023) (quoting

United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006)). Plaintiff does not identify any error, let

alone clear error, in the Report and Recommendation. Nor does the Court, after reviewing the

2 Under Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997), a pro se litigant is entitled to

assistance from the district court in identifying a defendant. Id. at 79.

record, see clear error in the Report and Recommendation. Indeed, notwithstanding any waiver or

reiteration of prior arguments by Plaintiff, the Court has conducted a de novo review of the Report

and Recommendation and finds it to be well reasoned and its conclusions well founded.

V. Conclusion

The Court adopts the Report and Recommendation in its entirety. Plaintiff Laverne A.

McBryde-O’Neal’s claims are dismissed with prejudice, with the exception of her Section 1983

excessive force claim against Defendant Dino Polichetti. Plaintiff's discovery demands, Dkt. 105,

are denied without prejudice, as any discovery disputes should be raised before Judge Tarnofsky

in the first instance and in accordance with her practices. The Clerk of Court is respectfully

directed to close the motions pending at Docket Numbers 63 and 105. The Clerk of Court is further

directed to mail a copy of this Order to the pro se Plaintiff.

SO ORDERED.

Dated: March 10, 2025 Vila e 7B

New York, New York JOHN P. CRONAN

United States District Judge

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