# Scott v. United States

> District Court, E.D. New York · March 17, 2025

URL: https://www.frixlaw.com/law-library/cases/10825799

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 17, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

KEVIN ERIC SCOTT,

Plaintiff,
MEMORANDUM & ORDER
– against – 24-cv-01506 (NCM) (LKE)

UNITED STATES OF AMERICA,

Defendant.

NATASHA C. MERLE, United States District Judge:

Plaintiff Kevin Eric Scott brings this action against defendant Dorothy Ann
Harbeck for harassment, terroristic threats, and intentional infliction of emotional
distress. See generally Compl., ECF No. 1-1. Defendant Harbeck made a motion to dismiss
plaintiff’s complaint for lack of jurisdiction, improper venue, and failure to state a claim.
See Def. Mot., ECF No. 18. Plaintiff Scott made his own motion to dismiss his claims from
this Court and to transfer them to a “special court of equity.” Pl. Mot., ECF No. 23. These
motions were referred to Magistrate Judge Lara K. Eshkenazi for a report and
recommendation (“R&R”), and on November 22, 2024, Magistrate Judge Eshkenazi
recommended that the Court grant defendant’s motion to dismiss in its entirety. See R&R,
ECF No. 29. For the reasons that follow, Magistrate Judge Eshkenazi’s recommendation
is adopted, defendant’s motion to dismiss is GRANTED, and plaintiff’s motion is DENIED
as moot.
BACKGROUND
In or around February 2011, plaintiff was served with a notice to appear for
removal proceedings. See R&R 1.1 Plaintiff’s removal proceedings were overseen by
several immigration judges (“IJs”) before being transferred to defendant IJ Dorothy
Harbeck. R&R 1.
Plaintiff’s first appearance before IJ Harbeck was scheduled for July 2019, but
plaintiff failed to appear. R&R 1. The hearing was rescheduled for November 2019, and
plaintiff appeared with counsel. R&R 1. Plaintiff’s counsel requested an adjournment,

which IJ Harbeck granted. R&R 1. IJ Harbeck reset the hearing for January 10, 2020.
R&R 1. Plaintiff appeared on January 10, 2020 without counsel, and sought another
continuance. R&R 2. IJ Harbeck denied the request for a continuance and issued a
removal order. R&R 2. Plaintiff appealed the removal order to the Board of Immigration
Appeals (“BIA”). R&R 2. While the appeal was pending, plaintiff also filed a motion to
terminate the removal proceedings, which IJ Harbeck denied in October 2021. R&R 2.
Plaintiff’s BIA appeal was dismissed on March 4, 2022. R&R 2.
In January 2022, plaintiff filed a complaint against IJ Harbeck in the Southern
District of New York, alleging breach of contract and seeking a declaration deeming the
removal order issued against him unenforceable. R&R 2; see also Scott v. Harbeck, No.
22-cv-00241, 2023 WL 1382050, at *1 (S.D.N.Y. Jan. 31, 2023), appeal dismissed (May

30, 2023). In March 2022, plaintiff sought to supplement his lawsuit to add allegations
regarding harassing mailings he allegedly received from IJ Harbeck. R&R 2. The

1 Throughout this Order, page numbers for docket filings refer to the page numbers
assigned in ECF filing headers.
Honorable Paul Oetken denied plaintiff’s request to supplement his complaint and
ultimately dismissed the action. R&R 3.
Plaintiff brought a second lawsuit against IJ Harbeck in New York Supreme Court,
Queens County on January 25, 2024. See Compl. 1. Plaintiff’s state court complaint
includes the allegations he attempted to add to his complaint filed in the Southern District
of New York. R&R 3. Plaintiff alleges that in March 2022, he received a letter with three
images of IJ Harbeck with words written on them including “GAME OVER,” and “I SEE
YOU LIKE BLUE CARS.” Compl. ¶¶ 5–6. Additionally, plaintiff alleges that the words

“YOU,” “KNOW,” and “WHO” were written on separate pieces of paper and enclosed with
photos of IJ Harbeck. Compl. ¶ 5. Next, plaintiff alleges that he received a package with a
return address of 26 Federal Plaza, New York, NY 10278, which contained a dead rat
stuffed into a small round cake pan. Compl. ¶¶ 8–9. As relief, plaintiff seeks $200,000 in
damages and an order of protection enjoining IJ Harbeck from contacting plaintiff other
than in her capacity as an immigration judge. Compl. 5.
On February 28, 2024, defendant removed the action to federal court pursuant to
28 U.S.C. § 1442(a)(1) because the action relates to alleged acts of an officer of the United
States Citizenship and Immigration Services (“USCIS”). See Notice of Removal, ECF No.
1. On March 4, 2024, defendant filed a scope of employment certification, averring that
IJ Harbeck was acting within the scope of her employment as a federal employee at the

time of the incidents alleged in plaintiff’s complaint. See Employment Certification, ECF
No. 5-1. On March 12, 2024, plaintiff filed a “notice of abatement” challenging the scope
of employment certification and seeking to remand this action back to state court. See
Notice of Abatement, ECF No. 8. Defendant responded on April 10, 2024, and plaintiff
filed a reply on April 22, 2024. See ECF Nos. 12, 15.
On March 27, 2024, defendant IJ Harbeck filed a request for a pre-motion
conference for an anticipated motion to dismiss, to which plaintiff responded on May 9,
2024. ECF Nos. 10, 16. On June 20, 2024, the undersigned found that a pre-motion
conference was not necessary and ordered a briefing schedule for defendant’s motion to
dismiss. See ECF Order dated June 20, 2024. Defendant filed her motion to dismiss on
July 23, 2024. See Def. Mot., ECF No. 18. On August 23, 2024, after filing his response to
defendant’s motion, plaintiff filed his own motion to dismiss his case from this Court and
for transfer into a “special court of equity.” See Pl. Mot., ECF No. 23.2 These motions were

referred to the Honorable Magistrate Judge Lara K. Eshkenazi for a report and
recommendation, which was entered on November 22, 2024. See R&R, ECF No. 29.
Magistrate Judge Eshkenazi recommended that defendant’s motion to dismiss be
granted in its entirety and that plaintiff’s complaint be dismissed for lack of subject matter
jurisdiction, improper venue, and failure to state a claim. See generally R&R. The R&R
also recommended that plaintiff’s complaint be dismissed without leave to amend.
Plaintiff filed an objection to the R&R on December 4, 2024, to which defendant
responded on December 18, 2024. See Plaintiff’s Objection (“Pl. Obj.”), ECF No. 31;
Defendant’s Response (“Def. Resp.”), ECF No. 32. Plaintiff filed a reply in support of his

2 In her report and recommendation, Magistrate Judge Eshkenazi construed
plaintiff’s own motion to dismiss, at ECF No. 23, as his opposition to defendant’s motion
to dismiss. See R&R 9 n.1. However, in so doing, the magistrate judge did not address
plaintiff’s filing at ECF No. 21, also filed in opposition to defendant’s motion to dismiss.
Upon review, the arguments contained in plaintiff’s opposition mirror the arguments
made in plaintiff’s own motion to dismiss at ECF No. 23. The Court therefore adopts
Magistrate Judge Eshkenazi’s treatment of the filing and construes it as a brief in support
of plaintiff’s opposition to defendant’s motion to dismiss. Throughout this order, the
Court refers to plaintiff’s own “motion to dismiss” at ECF No. 23 as Plaintiff’s Motion (“Pl.
Mot.”), and plaintiff’s filing in opposition to defendant’s motion to dismiss, ECF No. 21,
as Plaintiff’s Opposition (“Pl. Opp’n”).
objection on December 31, 2024. See Plaintiff’s Reply Objections (“Pl. Reply Obj.”), ECF
No. 33.
LEGAL STANDARD
Reports and recommendations issued by magistrate judges on dispositive matters,
and which are properly objected to, are subjected to de novo review pursuant to Rule
72(b)(3) of the Federal Rules of Civil Procedure. See Francois v. Brentwood Union Free
Sch. Dist., No. 21-cv-06265, 2024 WL 5186731, at *3 (E.D.N.Y. Dec. 20, 2024).
“Merely referring the court to previously filed papers or arguments does not

constitute an adequate objection” pursuant to Rule 72(b). Miller v. Brightstar Asia, Ltd.,
43 F.4th 112, 120 (2d Cir. 2022); see also N.Y.C. Dist. Council of Carpenters v. Allied
Design & Constr., LLC, 335 F. Supp. 3d 349, 351 (E.D.N.Y. 2018) (“[O]bjections that are
merely perfunctory responses argued in an attempt to engage the district court in a
rehashing of the same arguments set forth in the original petition will not suffice to invoke
de novo review of the magistrate [judge]’s recommendations.”).3 Nor will a court consider
any arguments not previously raised, but which could have been raised, before the
magistrate judge. Carpenters, 335 F. Supp. 3d at 351.
A district court reviews “[p]ortions of a report and recommendation that are not
properly objected to” for any “clear error on the face of the record.” Park v. Kim, No. 20-
cv-02636, 2022 WL 3643966, at *2 (E.D.N.Y. Aug. 24, 2022), aff’d, 91 F.4th 610 (2d Cir.

2024); see also Sosa v. N.Y.C. Dep’t of Educ., 368 F. Supp. 3d 489, 494 (E.D.N.Y. 2019)
(“General or conclusory objections, or objections which merely recite the same arguments
presented to the magistrate judge, are reviewed for clear error.”).

3 Throughout this Order, the Court omits all internal quotation marks, footnotes,
and citations, and adopts all alterations, unless otherwise indicated.
DISCUSSION
Magistrate Judge Eshkenazi recommended that plaintiff’s complaint be dismissed
because (1) plaintiff failed to exhaust his administrative remedies as required by the
Federal Tort Claims Act (“FTCA”) and thus this Court lacks subject matter jurisdiction;
(2) venue in the Eastern District of New York is improper; (3) the allegations in plaintiff’s
complaint are factually frivolous; (4) plaintiff’s claims for harassment and terroristic
threats are not cognizable torts under New York law; and (5) plaintiff’s allegations in his
complaint are insufficient to state a claim for intentional infliction of emotional distress.

See generally R&R. Additionally, Magistrate Judge Eshkenazi considered plaintiff’s
motion, filed at ECF No. 23 (“Pl. Mot.”), as a brief in opposition to defendant’s motion to
dismiss. See R&R 9 n.1. Plaintiff objects to Magistrate Judge Eshkenazi’s R&R on each
basis for dismissal identified in the R&R.
I. Subject matter jurisdiction
The FTCA provides an avenue for recovery from injury or loss of property
“resulting from the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of [her] office or employment.” 28 U.S.C. §
2679(b)(1). The United States has waived its sovereign immunity for these certain classes
of tort actions and is the only proper defendant. 28 U.S.C. §§ 2679, 1346(b)(1). Pursuant
to the Federal Employees Liability Reform and Tort Compensation Act of 1988, also

known as the Westfall Act, “[u]pon certification by the Attorney General that the
defendant employee was acting within the scope of [her] office or employment at the time
of the incident out of which the claim arose, any civil action . . . commenced upon such
claim . . . shall be deemed an action against the United States . . . and the United States
shall be substituted as the party defendant.” 28 U.S.C. § 2679(d)(1).
Before bringing a claim in a federal district court under the FTCA, a claimant must
first exhaust his administrative remedies by filing a claim for monetary damages with the
appropriate federal government entity and receive a final written determination. See 28
U.S.C. § 2675(a); see also Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d
76, 82 (2d Cir. 2005); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d
Cir. 1994). Such administrative claim must be in writing, specify the amount of damages
sought, and be filed within two years of the claim’s accrual. 28 U.S.C. §§ 2401(b), 2675(a);
see also A.Q.C. ex rel. Castillo v. United States, 715 F. Supp. 2d 452, 457 (2d Cir. 2010).

If the plaintiff fails to first present his claim to the appropriate agency and exhaust
his administrative remedies, then the plaintiff’s tort claims must be dismissed. Robinson,
21 F.3d at 510 (citing McNeil, 508 U.S. at 113); Foster v. Fed. Emergency Mgmt. Agency,
128 F. Supp. 3d 717, 728 (E.D.N.Y. 2015) (“Failure to comply with [exhaustion] results in
dismissal of the suit.”). The burden is on the plaintiff to plead compliance with the FTCA’s
requirements. Sisun v. United States, No. 18-cv-07429, 2019 WL 2163115, at *3 (E.D.N.Y.
May 16, 2019); Vailette v. Lindsay, No. 11-cv-03610, 2014 WL 4101513, at *5 (E.D.N.Y.
Aug. 18, 2014). However, the Court must first determine whether the FTCA applies to the
plaintiff’s claims before considering the issue of administrative exhaustion.
A. Employment certification
The FTCA is only applicable to the instant suit if defendant IJ Harbeck was acting

“within the scope of [her] office or employment” at the time of the events giving rise to
plaintiff’s claims. 28 U.S.C. § 2679(b)(1). Magistrate Judge Eshkenazi’s R&R found that
because the United States Attorney General filed a certification that IJ Harbeck was acting
within the scope of her employment, see ECF No. 5-1, that the United States should be
substituted as the sole defendant in the action and plaintiff’s claims are subject to the
FTCA. See R&R 7–8.
i. The Court may consider plaintiff’s challenge to the employment
certification.

In opposition to Magistrate Judge Eshkenazi’s R&R, plaintiff first argues that the
employment certification filed by the government does not conclusively establish that IJ
Harbeck was acting within the scope of her employment as a federal employee, and
therefore Magistrate Judge Eshkenazi erred by concluding that plaintiff’s claims were
subject to the FTCA. See Pl. Obj. 1–2. In response, defendant argues that the employment
certification is “entirely outside the scope of [d]efendant’s motion to dismiss,” and that
plaintiff’s arguments regarding the employment certification were fully briefed in
plaintiff’s “notice of abatement” which challenged the certification and sought to remand
this case to state court. See Def. Resp. 9. Defendant argues that plaintiff’s “notice of
abatement” was not referred to Magistrate Judge Eshkenazi for a report and
recommendation. Thus, because plaintiff’s notice of abatement was not referred,
defendant argues that plaintiff’s arguments concerning the notice of abatement were not
before Magistrate Judge Eshkenazi in making her recommendation and plaintiff’s
arguments on this point constitute improper objections. Def. Resp. 9. This argument is
unavailing.
Judicial review of a scope of employment certification may properly be undertaken
at the motion to dismiss stage, where the Court’s review of the employment certification
will control application of the FTCA, and by extension, whether the Court has jurisdiction
over the plaintiff’s claims. See Awan v. United States, No. 16-cv-00871, 2020 WL 1172634
(E.D.N.Y. Feb. 3, 2020), report and recommendation adopted, 2020 WL 1166448 (Mar.
11, 2020) (considering and denying plaintiff’s challenge to the government’s employment
certification, then recommending substitution of the United States as defendant and
dismissal based on sovereign immunity); Tomscha v. Poole, No. 16-cv-01263, 2016 WL
7378974 (S.D.N.Y. Dec. 20, 2016) (considering plaintiff’s challenge to employment
certification when deciding motion to dismiss, and dismissing because the claims raised
by plaintiff’s complaint were precluded by the FTCA); Maggulli v. Quinn, No. 24-cv-
06398, 2025 WL 690347 (W.D.N.Y. Mar. 4, 2025) (considering plaintiff’s challenge to
employment certification on motion to dismiss and dismissing for failure to exhaust
administrative remedies).

Thus, it is not improper for the Court to consider pro se plaintiff’s arguments as to
the employment certification even if not raised as a direct response to defendant’s motion
to dismiss. Indeed, even if the Court were to find that plaintiff’s objections to the R&R
were improper, the Court would still engage in an analysis of plaintiff’s arguments on this
point to ensure the magistrate judge’s determination was not clearly erroneous on its face.
ii. Plaintiff has not proven by a preponderance of the evidence that
defendant IJ Harbeck was acting outside the scope of her
employment.

In support of his objection to the R&R as to IJ Harbeck’s employment certification,
plaintiff makes two main arguments. First, plaintiff argues that the employment
certification is subject to judicial review, and that the certification should not
automatically result in the application of the FTCA to his claims. Pl. Obj. 2–3. Second,
plaintiff argues that IJ Harbeck was acting outside the scope of her employment at the
time of the alleged actions underlying this complaint. Pl. Obj. 1–3. While plaintiff is
correct that employment certifications may be subject to judicial review, plaintiff has
failed to allege facts that would show IJ Harbeck was acting outside the scope of her
employment at the time of the alleged conduct underlying plaintiff’s complaint. Thus,
plaintiff’s arguments fail.
Plaintiff relies principally on Osborn v. Haley, 549 U.S. 225 (2007) to argue that
IJ Harbeck’s employment certification is subject to judicial review. In Osborn, the district
court rejected the Attorney General’s employment certification because the district court
accepted the plaintiff’s allegations as true at the motion to dismiss stage, and for purposes
of that order, concluded that the federal employee was acting outside the scope of his
employment. Id. at 231. The Sixth Circuit Court of Appeals vacated the district court’s

order, and the Supreme Court affirmed. Id. In so doing, the Supreme Court held that in
these situations, “[t]he United States . . . must remain the federal defendant in the action
unless and until the District Court determines that the employee, in fact, and not simply
as alleged by the plaintiff, engaged in conduct beyond the scope of [her] employment.” Id.
(emphasis in original). The Court further explained an employment certification “is
proper when a federal officer charged with misconduct asserts, and the Government
determines, that the incident or episode in suit never occurred.” Id. at 247.
Thus, plaintiff is correct that a scope-of-employment certification may be subject
to judicial review. Id. at 246. However, judicial review of such certifications is only
appropriate where the plaintiff “alleges with particularity facts relevant to the scope-of-
employment issue.” Rosenblatt v. St. John’s Episcopal Hosp., No. 11-cv-01106, 2012 WL

294518, at *6 (E.D.N.Y. Jan. 31, 2012); see also Green v. Hinds, No. 17-cv-05422, 2019
WL 624929, at *4 (E.D.N.Y. Feb. 14, 2019) (“A plaintiff challenging the scope of
employment determination must come forward with particular facts establishing the
defendant employees were not in fact acting within the scope of their employment.”). If
the plaintiff satisfies his initial burden to allege with particularity facts relevant to the
scope-of-employment issue, the Court will conduct de novo review of the certification.
Cepeda v. United States, No. 19-cv-05967, 2020 WL 4194632, at *2 (S.D.N.Y. July 21,
2020). At this point, plaintiff’s burden is “to prove, by a preponderance of the evidence,
that defendants were acting outside the scope of their employment.” Corley v. U.S. Dep’t
of Just., No. 14-cv-00925, 2016 WL 11395009, at *5 (E.D.N.Y. Sept. 6, 2016), report and
recommendation adopted sub nom. Corley v. United States, 2016 WL 5394705 (Sept. 27,
2016). In conducting such a review, courts apply state law principles pertaining to scope
of employment issues. Id. In New York, courts consider factors such as “(1) whether the

time, place and occasion for the act was connected to the employment; (2) the history of
the employer-employee relationship in actual practice; (3) whether the act is one
commonly done by such an employee; (4) the extent to which the act departs from normal
methods of performance; and (5) whether the act was one that the employer could
reasonably have anticipated.” Green, 2019 WL 624929, at *5. The Court, “not a jury,
resolves any relevant question of fact” when reviewing an employment certification,
Corley, 2016 WL 11395009, at *5, without “necessarily accepting as true the allegations
in the complaint,” Smith v. Brown, 296 F. Supp. 3d 648, 655 (S.D.N.Y. 2017).
The government has certified that defendant IJ Harbeck was acting within the
scope of her employment as a federal employee at the time of the incidents alleged in the
complaint. See Employment Certification, ECF No. 5-1. Therefore, plaintiff bears the

burden of alleging with particularity facts which would undermine the determination that
IJ Harbeck was acting in the scope of her employment. Plaintiff’s complaint does not
contain factual allegations to support his argument that IJ Harbeck’s alleged conduct was
outside the scope of her employment. Nor does his opposition to defendant’s motion to
dismiss adequately address the scope of employment issue, containing only a conclusory
statement that “none of the allegations support the contention that defendant Harbeck
was acting within the scope of her duty as an Immigration Judge when the actions
complained of were committed.” See Pl. Opp’n.
However, in plaintiff’s March 12, 2024 “notice of abatement,” which sought to
remand this action back to state court, plaintiff argues that IJ Harbeck “allegedly went to
a Post Office on a Saturday” to mail things to plaintiff’s home, and because “[i]mmigration
courts are not open for business on Saturdays [ ] the actions complained about are clearly
not within the scope of her employment.” Notice of Abatement 4. This lone factual

allegation is likely insufficient to warrant de novo review of the employment certification.
Nevertheless, out of an abundance of caution, the Court will consider plaintiff’s
arguments challenging the scope of employment certification. See Coalts-Young v. Glens
Falls Hosp., No. 14-cv-00271, 2014 WL 6474855, at *4 (N.D.N.Y. Nov. 19, 2014).
Despite the allegation of the Saturday mailings, plaintiff’s own arguments link the
alleged mailings to defendant IJ Harbeck’s employment as an immigration judge.
Specifically, plaintiff argues that the first harassing mailing was received thirteen days
after his immigration appeal was denied, and that the mailings “had words in the context
of removal written on them,” and that “[t]he mailings are directly connected to
[d]efendant and her place of employment.” Pl. Reply Obj. 3–4. Plaintiff’s complaint also
alleges that the return address of the package he received was 26 Federal Plaza, New York,

NY 10278, which is the location of IJ Harbeck’s employment. See Compl. ¶ 8; Pl. Opp’n 7.
Even though plaintiff alleges the dead rodent was mailed to him in retaliation for
a complaint plaintiff made against IJ Harbeck, see Pl. Opp’n ¶ 20, an assertion of
retaliatory motive, even if plausible, is insufficient “to establish that an employee was
acting outside the scope of [her] employment, at least absent proof of personal motives
unrelated to the furtherance of the employer’s business.” Corley, 2016 WL 11395009 at
*5. Plaintiff does not allege a personal motivation for the alleged mailings outside of IJ
Harbeck’s role as an immigration judge.4 Indeed, plaintiff’s arguments in support of his
claim for intentional infliction of emotional distress state that IJ Harbeck’s alleged
mailings were meant to threaten that she would remove him from this country,
presumably through an order in her capacity as an immigration judge. See Pl. Obj. 10
(“Defendant Harbeck, as a public official, mailed threatening and taunting messages to
the plaintiff’s home . . . threatening to exile him from his home country . . . and all of the

other collateral consequences attendant to deportation.”).
Moreover, contrary to plaintiff’s argument, even if IJ Harbeck’s alleged conduct
was violative of the law, that alone is insufficient to meet plaintiff’s burden to prove by a
preponderance of the evidence that IJ Harbeck acted outside of her employment as an
immigration judge. Specifically, plaintiff argues that “Title 8 of the United States Code”
and the “Code of Federal Regulations” does not authorize an employee to send pictures of
themselves or dead rodents to individuals before the Immigration Court, and thus
defendant IJ Harbeck was not acting within the scope of her employment. See Pl. Reply
in Support of Notice of Abatement, ECF No. 15 at 3. This argument does not undermine
the government’s employment certification. An employee’s actions that are contrary to
law or the employer’s instructions are not necessarily outside the scope of employment if

done in service of the employer. See Norwood v. Simon Prop. Grp., Inc., 159 N.Y.S.3d

4 Plaintiff’s complaint does not include allegations of a retaliatory motive for mailing
the dead rat. Instead, this allegation is presented for the first time in plaintiff’s opposition
to defendant’s motion to dismiss. Plaintiff states that the mailing was in response to a
complaint he filed with the Office of Inspector General, the Chief Immigration Judge in
Falls Church Virginia, to IJ Harbeck’s supervisor, and to the Honorable Paul J. Oetken.
Pl. Opp’n 20. This allegation is not present in plaintiff’s notice of abatement briefing. See
Notice of Abatement; Pl. Reply in Support of Notice of Abatement, ECF No. 15.
482 (2d Dep’t 2021) (finding defendant employer movie theater could not establish as a
matter of law that employee was acting outside the scope of employment when he
brandished a baton and then threatened plaintiff with a pellet gun); Ramos v. Jake Realty
Co., 801 N.Y.S.2d 566 (1st Dep’t 2005) (building superintendent not acting outside of
scope of employment as a matter of law where he assaulted plaintiff tenant to prevent
plaintiff from gathering evidence to support an application for rent abatement).
Moreover, defendant IJ Harbeck asserts that she never sent the alleged mailings
at issue in this case. See Harbeck Declaration, ECF No. 18-3 ¶¶ 8, 14, 16–19 (denying that

she ever personally sent mail to plaintiff). Specifically, defendant asserts that her only
contact with plaintiff, except for the purposes of the lawsuits brought against her by the
plaintiff, was in her role as an immigration judge. ECF No. 12 at 18. Where the incident
giving rise to the complaint is denied by the employee against whom the action is brought,
and the Government determines that the incident never occurred, an employment
certification is proper unless the plaintiff can demonstrate by a preponderance of the
evidence that it did in fact occur and that the employee was acting in their individual
capacity. Osborn, 549 U.S. at 246. Otherwise, an employee’s immunity from suit would
be stripped away simply by allegations in a complaint, rather than what is found by the
Court, undermining the FTCA’s purpose of shielding federal employees from suit. Id. at
247.

Even assuming that plaintiff offered evidence relevant to the scope of employment
issue, plaintiff has failed to prove, by a preponderance of the evidence, that IJ Harbeck
was acting outside the scope of her employment at the time of the alleged actions giving
rise to plaintiff’s complaint. Therefore, the FTCA governs this action. Defendant IJ
Harbeck is dismissed from this case in her individual capacity and the United States is
substituted as the sole defendant.
B. Administrative Exhaustion
Having found that the FTCA applies and that the United States is the proper
defendant in this action, the Court addresses plaintiff’s next argument, that Magistrate
Judge Eshkenazi erred in finding that the Court lacks subject matter jurisdiction because
plaintiff failed to exhaust his administrative remedies in compliance with the FTCA.
Plaintiff argues that he is not required to exhaust administrative remedies pursuant to the

FTCA prior to filing a suit in state court against a federal employee not acting within the
scope of their employment. Pl. Obj. 3.
However, as discussed above, the Court has substituted the United States for IJ
Harbeck as defendant in this case because plaintiff has failed to show by a preponderance
of the evidence that IJ Harbeck was acting outside the scope of her employment.
Therefore, the FTCA applies to this action. The FTCA requirement “that a claimant
exhaust all administrative remedies before filing a complaint” is “jurisdictional and
cannot be waived.” Celestine, 403 F.3d at 82; see also Leytman v. United States, 832 F.
App’x 720, 722 (2d Cir. 2020) (“Failure to comply with this exhaustion requirement
deprives Article III courts of subject matter jurisdiction over FTCA claims.”). This
requirement “applies equally to litigants with counsel and those proceeding pro se.”

Adeleke v. United States, 355 F.3d 144, 153 (2d Cir. 2004). Contrary to plaintiff’s
argument that administrative exhaustion is not required because he did not bring this
lawsuit against the DOJ or the United States, see Pl. Opp’n 1, the FTCA’s exhaustion
requirement applies to any claim alleging a “negligent or wrongful act or omission of any
employee of the Government while acting within the scope of [her] office or employment,”
as the Court has determined is the case here. 28 U.S.C. § 2675(a); see also Rosenblatt,
2012 WL 294518, at *9 (dismissing FTCA claim for failure to administratively exhaust
remedies where suit was brought against hospital and individual defendants and plaintiff
disputed that defendants were acting within the scope of their employment).
Furthermore, as the Court “may consider documents outside of the pleadings to
determine whether [p]laintiff has exhausted his administrative remedies,” Jackson v.
Stewart, No. 22-cv-07476, 2024 WL 3677246, at *5 n.2 (S.D.N.Y. Aug. 5, 2024), the Court
considers defendant’s affidavit which reports that there is no record of an administrative

tort claim submitted by plaintiff for the conduct alleged in his complaint, see Declaration
of Elijah F. Jenkins, ECF No. 18-4 ¶ 3. As plaintiff has failed to establish that he exhausted
his administrative remedies before filing this action, plaintiff’s claims are dismissed for
lack of subject matter jurisdiction.
C. Remaining arguments
Following Magistrate Judge Eshkenazi’s recommendation that plaintiff’s
complaint be dismissed for lack of subject matter jurisdiction, she noted that the “Court
need not consider [d]efendant’s remaining arguments in support of dismissal,” but
addressed those arguments “out of an abundance of caution.” R&R 9–10. Where a
defendant moves for dismissal under both Rule 12(b)(1) and other grounds, “the court
should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for

lack of subject matter jurisdiction, the accompanying defenses and objections become
moot and do not need to be determined.” Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass’n,
896 F.2d 674, 678 (2d Cir. 1990); see also Smith v. N.Y. State Sec’y of State, No. 20-cv-
04958, 2022 WL 970749, at *3 n.7 (E.D.N.Y. Mar. 31, 2022) (“Because the Court finds
that it lacks jurisdiction over this matter, it does not reach [defendant’s] Rule 12(b)(6)
arguments or discuss that standard.”); Howard v. Carter, No. 23-cv-00159, 2024 WL
4573767 (W.D.N.Y. Oct. 24, 2024).
Having found after de novo review that plaintiff’s complaint should be dismissed
for lack of subject matter jurisdiction, the Court refrains from reaching the other bases
for dismissal presented by defendant and recommended by Magistrate Judge Eshkenazi,
including that plaintiff’s complaint be dismissed for the following reasons: because
injunctive relief is not available under the FTCA; for improper venue; because plaintiff’s
claims for harassment and terroristic threats lack a private analogue; plaintiff’s claim for

intentional infliction of emotional distress fails to state a claim; and plaintiff’s factual
allegations are frivolous. See generally R&R.
Lastly, while Magistrate Judge Eshkenazi construed plaintiff’s motion to dismiss
as his opposition to defendant’s motion to dismiss, see R&R 9 n.1, the R&R did not contain
a recommendation as to the disposition of that motion. Nevertheless, the Court finds that
plaintiff’s motion for transfer to a “special court of equity” is moot because his complaint
is dismissed in its entirety. Accordingly, plaintiff’s motion, ECF 23, is denied as moot.
II. Leave to amend
Plaintiff’s objection does not address Magistrate Judge Eshkenazi’s
recommendation that the Court deny plaintiff leave to amend or supplement his
complaint. Magistrate Judge Eshkenazi recommended that plaintiff be denied leave to

amend or supplement his complaint because the complaint “is replete with implausible
allegations that he has attempted to supplement with what appears to be staged video
evidence” and that allowing plaintiff leave to amend would reward bad faith conduct. R&R
16–17. As plaintiff has not objected to this recommendation, the Court “need only satisfy
itself that there is no clear error on the face of the record.” Finley v. Trans Union,
Experian, Equifax, No. 17-cv-00371, 2017 WL 4838764, at *1 (E.D.N.Y. Oct. 24, 2017)
(quoting Estate of Ellington ex rel. Ellington v. Harbrew Imports Ltd., 812 F. Supp. 2d
186, 189 (E.D.N.Y. 2011)).
While courts “should freely give leave” to amend “when justice so requires,” see
Fed. R. Civ. P. 15(a)(2), courts may deny leave to amend upon a showing of undue delay,
bad faith, dilatory motive, or where amendment would be futile. Sacerdote v. N.Y. Univ.,
9 F.4th 95, 115 (2d Cir. 2021). Considering that the defects of plaintiff’s complaint
warranting dismissal are unlikely to be remedied through amendment, the Court finds no

clear error in Magistrate Judge Eshkenazi’s recommendation that plaintiff be denied
leave to amend his complaint. Accordingly, plaintiff’s complaint is dismissed without
leave to amend.
CONCLUSION
The Clerk of Court is respectfully directed to modify the caption of this matter to
reflect that the United States is the sole party defendant. For the reasons stated above,
defendant’s motion to dismiss plaintiff’s complaint in its entirety is GRANTED without
leave to amend, and plaintiff’s motion to dismiss and for transfer to a special court of
equity is DENIED as moot. The Clerk of Court is respectfully requested to enter judgment
and close this case and send a copy of the Order and Judgment to plaintiff and note the
mailing on the docket.

SO ORDERED.
/s/ Natasha C. Merle
NATASHA C. MERLE
United States District Judge

Dated: March 17, 2025
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10825799. Public record. Not legal advice.