Moolenaar

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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BRIAN KEITH MOOLENAAR,

Plaintiff,

-against- MEMORANDUM & ORDER

24-CV-8636 (NRM) (TAM)

VICTOR KNAPP, Attorney; SCOTT BOOKSTEIN,

Attorney; ALAN M. PERRY, PhD., Queens Forensic

Psychiatric Evaluation Court Clinic;

FIONA RADCLIFF, Queens Forensic Psychiatric

Evaluation Court Clinic;

LYNELLE MAGINLEY-LIDDIE, Commissioner,

NYC Department of Corrections; MICHAEL FOX,

Attorney; SARAH DAVICA, Attorney,

Defendants.

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NINA R. MORRISON, United States District Judge:

Plaintiff Brian Moolenaar filed this pro se civil rights action on November 14,

2024, initially in the United States District Court for the Southern District of New

York before it was transferred to this Court on December 18, 2024. On August 20,

2025, the Court dismissed New York Supreme Court Justice Ira H. Margulis, Queens

District Attorney Melinda I. Katz, and Assistant District Attorney Kanella

Georgopoulos on immunity grounds. The Court then dismissed the case for failure to

prosecute pursuant to Fed. R. Civ. P. 41(b) on March 9, 2026, after Plaintiff failed to

respond to the remaining Defendants’ motions to dismiss. Plaintiff eventually filed

his opposition to the motions to dismiss on March 31, 2026 — twenty days after

judgment was entered. For the reasons below, Plaintiff’s opposition is construed as

a motion for reconsideration under Fed. R. Civ. P. 59(e) and 60(b) and hereby granted.

BACKGROUND

Moolenaar’s original and amended complaints stem from his criminal

proceedings for alleged assault and second-degree murder in Queens Supreme

Criminal Court (Indictment Nos. 70226/2022 and 72370/2023).1 He filed his initial

complaint in the United States Court for the Southern District of New York on

November 14, 2024, accusing the judge, members of the Queens County District

Attorney’s office, defense counsel (Defendants Victor Knapp and Scott Bookstein),

and forensic psychiatrists (Defendants Alan M. Perry and Fiona Radcliffe (sued as

Fiona Radcliff)) involved with his criminal case — along with the Commissioner of

the New York Department of Corrections and Community Supervision — of

misconduct and constitutional violations. ECF No. 1 at 2–3, 7. Specifically, Plaintiff

alleged that Defendants failed to follow New York laws of criminal procedure when

they declared him “unfit by mental defect without first entering a direct motion for a

Guardian ad litem.” Id. at 4. The complaint also seemingly references a lien placed

on Plaintiff’s property, which he characterized as “a fraudulent claim upon [an]

incorporated trust.”2 Id. at 5 (citation modified).

1 See N.Y.C. Dep’t of Corr., Person in Custody Lookup Service,

https://a073-ils-web.nyc.gov/inmatelookup/pages/home/home.jsf (last visited

May 4, 2026).

2 Most of the complaint’s attachments concern an alleged lien on Plaintiff’s

property in the amount of $84 million. See ECF No. 1 at 5. Plaintiff accused the

Honorable Gia Morris — one of the judges who presided over his criminal

proceedings — of issuing an execution lien against his personal property. See ECF

No. 7 at 20, 53. The notion of a lien on his property appear to stem from “proceeds

removed” from his incarcerated account. See ECF No. 1 at 5–6, 9. While Plaintiff

Plaintiff filed a first amended complaint on December 16, 2024, against many

of the same defendants named in the original complaint. ECF No. 7 at 1. He accused

Defendants of forcibly transporting him from Rikers Island without allowing him to

take his personal items — specifically, a secure tablet — with him. Id. at 2. He

requested an investigation to locate his tablet, along with its prompt return, but did

not clearly state a claim for relief. See id. at 4–5. Plaintiff also included a number of

exhibits to the amended complaint, including: a copy of Indictment 70226-22/001

charging him with attempted murder, first-degree assault, and criminal possession

of a weapon in the fourth degree; a copy of Indictment 72370-23/001 charging him

with second-degree murder (after his victim succumbed to his injuries); and an Order

of Commitment signed by the Honorable Gia Morris on November 20, 2023, made on

motion by Defendant Knapp, and listing Defendants Perry and Radcliffe as forensic

examiners. See ECF No. 7-1 at 19–26.

included a copy of transactions from his incarcerated account, none appear to reflect

garnishments by the Court or the State of New York. Id. at 9.

The inferences giving rise to Plaintiff’s monetary damages are somewhat

convoluted. It seems that Plaintiff represented himself as the surety to bonds

allegedly issued against him, and he pledged the PQNAX mutual fund (CUSIP:

018918649) — ostensibly worth $998,314,000 as of September 2022 — as assets in

support of the bond. See ECF No. 7-1 at 27–29. He also advanced his “BRIAN-

KEITH: MOOLENAAR TRUST” — for which he has a registered service mark

within the State of New York but provides no other certificate of trust — as the

financial institution submitting the pledge of securities on his behalf. Id. at 18, 27.

According to Plaintiff, during a May 26, 2023 video conference, Defendants Knapp

and Bookstein conducted a search for the PQNAX fund and stated that it contained

only $914 million in assets. See ECF No. 7 at 23–24. This led Plaintiff to conclude

that “the Clerk of the Court had already transferred [$84 million] from the account

and deposited the embezzled proceeds into an escrow account” at the Queens

Supreme Criminal Court. Id. at 24.

On December 18, 2024, the case was transferred to this Court. Between

January 21, 2025, and June 3, 2025, Plaintiff filed ten exhibits, letters, and affidavits

— often filing multiple submissions during a particular week. Most of these

documents were attached to Plaintiff’s original and amended complaints or contain

the order transferring the case to this Court.3 In one document, filed February 14,

2025, Plaintiff claimed that the charges against him were dismissed, “thereby barring

any further prosecution” against him. ECF No. 14 at 6. He alleged that he was being

“unlawfully detained” at North Infirmary Command (“N.I.C.”), after being “found fit

by doctors Dabo and Nessles on April 29th, 2024” and discharged from Kirby Forensic

Psychiatric Center (“Kirby”) on May 8, 2024. Id. at 6–7. In another, filed May 15,

2025, Plaintiff included a petition for writ of habeas corpus he filed on March 12,

2025. ECF No. 17 at 6–11. He insisted that his criminal charges were dismissed on

May 8, 2024. Id. at 7. To support this, Plaintiff included a Notice of Meeting

regarding his application for change in status. Id. at 12. This Notice informed

Plaintiff of a meeting to be held on April 8, 2024, during which a Dr. Frischer would

conduct an examination to determine whether Plaintiff was fit to proceed. Id.

Plaintiff again insisted that he was found fit to proceed on April 29, 2024, this time

by Drs. Frischer, Nessles, and Dabo. Id. at 13.

I. Second Amended Complaint

3 A more detailed review of these documents can be found in the Court’s

Memorandum and Order granting Plaintiff leave to file a second amended

complaint.See ECF No. 21.

On June 30, 2025, the Court granted Plaintiff leave to file a second amended

complaint that would conform with Rule 8(a) of the Federal Rules of Civil Procedure

(“FRCP”). ECF No. 21. The Court ordered Plaintiff to “clearly identify the individual

defendants whom he believes violated his rights and include specific factual details

about how each defendant violated his rights” within thirty days of its Order. Id. at

9.

Between July and August 2025, Plaintiff filed three different documents

entitled “Second Amended Complaint.”4 The first was filed on July 31, 2025, see ECF

No. 26, and was accepted by the Court in light of circumstances raised in Plaintiff’s

July 30, 2025 letter. See ECF No. 25 at 3 (indicating that Plaintiff had not yet

received the Court’s Memorandum and Order granting leave to amend as of July 9,

2025); see also Order dated Aug. 1, 2025. The second version was filed on August 5,

2025, and is virtually identical to the one filed on July 31, 2025 — save for a single

exhibit to be discussed further below. See ECF No. 28. On August 12, 2025, Plaintiff

filed the third version of his Second Amended Complaint. ECF No. 29. In this version

— among other distinctions from the first two — Plaintiff stated that he was

transferred from N.I.C. to Kirby on July 14, 2025. Id. at 2–4. This transfer may have

interrupted Plaintiff’s ability to receive and respond to the Court’s orders in a timely

fashion. See ECF No. 30 at 2 n.1.

4 These filings came after Plaintiff submitted four exhibits and/or affidavits to

the Court between July 7 and July 30, 2025. These submissions largely consisted of

information and/or documents already filed with the Court. See ECF No. 22; ECF

No. 23; ECF No. 24; ECF No. 25.

As noted above, the Second Amended Complaint versions filed on July 31 and

August 5, 2025 are roughly identical.5 In both, Plaintiff alleged that he was found fit

to proceed on April 29, 2024, and that his criminal charges were dismissed on May 8,

2024. ECF No. 26 at 2. He accused Judge Ira H. Margulis — the presider over his

criminal case — of “malicious judicial conduct” for continuing to order him “produced

in court . . . with his arms cuffed behind his back with leg irons until January 22nd,

2025.” Id. at 2–3. He also accused Queens County District Attorney Melinda Katz

and Assistant District Attorney Kanella Georgopoulos of malicious prosecution for

“continu[ing] to prosecute a case that clearly did not exist.” Id. at 3.

Plaintiff also accused his attorneys — Defendants Michael Fox and Sarah

DeVita (sued as Sarah DaVica) — of perjuring themselves during a June 25, 2025

video conference in Bronx Supreme Criminal Court. Id. at 4. According to Plaintiff,

his attorneys lied by representing that they had a commitment order for him, because

he had not been “evaluated by any psychiatrist since having [his] charges dismissed

May 8th, 2024.” Id. at 4–5 (citation modified). In support of this, Plaintiff attached a

partial printout of Case Details for Case No. SMZ-71559-25/001 in Bronx Supreme

Criminal Court. Id. at 10. The document listed appearances scheduled for April 23,

May 7, and May 21, 2025, but made no reference to any appearances on June 25,

2025. Id. Plaintiff also included a transcript from proceedings held on January 22,

2025, before Judge Margulis in Queens County Criminal Court, regarding Indictment

5 For ease of reference, citations to these two documents will be to the version

filed on July 31, 2025, ECF No. 26, unless otherwise noted.

Nos. 72370-23 and 70226-22. See id. at 11. During these proceedings, Defendant

insisted that he was not the defendant, but rather the secured party; he further

accused the prosecution and his defense counsel of being the “real defendant[s].” Id.

at 18–19. In response, Judge Margulis found Plaintiff unfit, and ordered him

returned to the New York State Office of Mental Health (“OMH”). See id. at 19–20;

ECF No. 28 at 10. The Second Amended Complaint version filed on August 5, 2025

includes a copy of the Order of Commitment pursuant to New York Civil Practice Law

§ 730.50, which deemed Plaintiff incapacitated and ordered him to the care of the

OMH for one year from January 22, 2025. See ECF No. 28 at 10–11.

The third version of the Second Amended Complaint, filed on August 12, 2025,

differs slightly from the first two. ECF No. 29. It is principally concerned with

Plaintiff’s alleged transfer from N.I.C. to Kirby on July 14, 2025, despite his

contention that his case was dismissed. Id. at 2–3. Plaintiff claimed that the

discharge order included a “bogus” commitment order dated January 22, 2025 —

“bogus” because Plaintiff had been “found fit to proceed by Dr. Frischer, Dr. Nessles,

and Dr. Dabo” on April 8, 2024,6 and “ha[d] not been seen by any psychiatrist since

th[at] date.” Id. at 4, 6. He inferred that this discharge order came from Defendant

Lynelle Maginley-Liddie and alleged that they came in “pure retaliation . . . for []

exercising his rights by suing the defendants.” Id. at 6.

6 Plaintiff does not acknowledge the discrepancy between this date and the

April 29, 2024 date alleged in his previous filings.

Plaintiff also accused Defendants Knapp and Bookstein for “aid[ing] the Court

in introducing and manufacturing fabricated evidence by concurring with the Courts’

violations of plaintiff’s rights.” Id. at 8 (citation modified). Plaintiff appeared to be

referring to the January 22, 2025 Order of Commitment, which indicated that “the

Court, prosecutor, and defense counsel [] concurred that [Plaintiff] lacks the capacity

to understand the proceedings against [him] or to assist in [his] own defense.” Id. at

13. He also accused Judge Margulis of “operating . . . way beyond the scope of

authority by creating two psychiatrist[s] in his commitment order that clearly were

not present at the hearing of 1/22/25.” Id. at 9. The January 22, 2025 Order of

Commitment makes no apparent reference to any psychiatrists, or parties beyond

Plaintiff, his counsel, the judge, and prosecution. See id. at 13–14.

Finally, Plaintiff accused Commissioner Ann Marie Sullivan of the OMH7 of

“detaining [him] unlawfully” at Kirby, “violating [his] private and constitutional”

rights. See id. at 10 (citation modified). He claimed that due to his transfer, he lacked

access to his habeas corpus proceedings — including a hearing allegedly scheduled

for July 16, 2025 — as well as a law library and “documents to file with the Court.”

See id. at 7.

II. Procedural Posture

On August 20, 2025, the Court dismissed Judge Margulis, Melinda Katz, and

Kanella Georgopoulos from this action, on immunity grounds pursuant to 28 U.S.C.

7 Commissioner Sullivan is not included in any of the captions for the Second

Amended Complaint versions.

§ 1915A(b). ECF No. 30. The Court allowed Plaintiff to proceed with his claims

against Defendants Victor Knapp, Scott Bookstein, Alan M. Perry, Fiona Radcliffe,

Lynelle Maginley-Liddie, Michael Fox, and Sarah DeVita. Id. at 9.

Over the span of two weeks — from August 26 to September 9, 2025 — Plaintiff

made five submissions to the Court’s docket. See ECF No. 31; ECF No. 33; ECF No.;

ECF No. 35; ECF No. 37; ECF No. 38. These included affidavits of service and letters

to the undersigned and the Eastern District of New York’s Pro Se Office. See ECF

No. 33; ECF No. 37; ECF No. 38. Over multiple documents — including one entitled

“Second Amended Complaint,” ECF No. 35 — Plaintiff accused authorities at Kirby

of “suppress[ing]” his case by mishandling and tampering with his mail. See ECF No.

33 at 1–2; ECF No. 35 at 4. Additionally, in another document, Plaintiff stated that

he was “threatened by a team of officers at Rikers Island” and “kidnapped and taken

away to Kirby” on February 27, 2024. ECF No. 31 at 6–7 (citation modified). He

claimed that this happened after Defendants Radcliffe and Perry “maliciously and

deliberately diagnose[d]” him. Id. at 8. Plaintiff also included an Examination Report

by forensic evaluators Drs. Louise Mullan and Jeremy Colley relating to Indictment

Numbers IND-70226-22/001 and IND-72370-23/001. Id. at 19. The report

documented the forensic evaluators’ attempt to perform a competency evaluation on

Plaintiff on September 27, 2024, after which they were unable to render an opinion.

Id. at 19–21.

On September 19, 2025, a summons was issued as to Defendants Bookstein,

DeVita (sued as DaVica), Fox, Knapp, Maginley-Liddie, Perry, Radcliffe (sued as

Radcliff), and Commissioner Sullivan. ECF No. 39. Between November 24, 2025 and

January 18, 2026, Defendants — save for Defendant Fox (who, at present, has not

yet appeared) — filed motions to dismiss Plaintiff’s Second Amended Complaint,

liberally construed. See ECF No. 44; ECF No. 63; ECF No. 69; ECF No. 74; ECF No.

77. Collectively, Defendants raise grounds for dismissal based on FRCP Rules 4(e),

8(a), 12(b)(1), and 12(b)(6), as well as sovereign and qualified immunity. See ECF No.

44; ECF No. 63; ECF No. 69; ECF No. 74; ECF No. 77.

Plaintiff was originally ordered to respond to the motions to dismiss by

February 9 and February 18, 2026. See Order dated Nov. 25, 2025; Order dated Jan.

9, 2026. After Plaintiff missed these deadlines, the Court sua sponte extended

Plaintiff’s opposition deadline to March 6, 2026. Order dated Feb. 24, 2026. The

Court further warned that “[f]ailure to follow Court-ordered briefing schedules or

respond to Defendants’ motions to dismiss may result in dismissal for failure to

prosecute, or the Court granting the . . . motions as unopposed.” Id.

On March 9, 2026 — following continued silence from Plaintiff — the Court

dismissed the case for failure to prosecute and dismissed Defendants’ motions as

moot. See Order dated Mar. 9, 2026. The Clerk of Court entered judgment on March

11, 2026. ECF No. 87.

Plaintiff finally filed an opposition on March 31, 2026, along with another

document entitled “Reply in Opposition” on April 14, 2026. See ECF No. 88; ECF No.

89. These documents are effectively identical. In his opposition,8 Plaintiff largely

reiterates the allegations contained in his Second Amended Complaint, broadly

construed. He also mentions that he was transferred to Rose M. Singer Enhanced

Supervised Housing (“RESH”) in December 2025, and he has since fallen ill as a

result of being placed in a dormitory with sealed windows and “air vents [] clogged

with dust.” ECF No. 88 at 3. Plaintiff further states that his allergies were

exacerbated by fights that broke out on February 12 and 13, 2026, during which

corrections officers “sprayed a noxious gas that had [Plaintiff] and the other[]

detainees throwing [up] and gagging from not being able to breath[e].” See id. at 3–

4. Finally, Plaintiff notes that he did not receive the Court’s Order until March 11,

2026, although he does not specify which order he is referring to. Id. at 5. He asks

the Court to accept his opposition both as a Freedom of Information Law request and

because “it was beyond [Plaintiff’s] control to respond promptly” due to his current

illness. See id. at 5.

LEGAL STANDARD

Because Plaintiff’s opposition was filed after judgment entered in this case, it

may be construed as a motion for reconsideration, which can be brought under FRCP

Rules 59(e) and 60(b). Under Rule 59(e), a “motion to alter or amend a judgment

must be filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P.

59(e). In contrast, Rule 60(b) allows a party to be relieved from final judgment for

8 For ease of reference, citations to Plaintiff’s opposition will be to ECF No.

88.

different reasons, including for “mistake, inadvertence, surprise, or excusable

neglect” and “any other reason that justifies relief.” Fed. R. Civ. P. 60(b). Such a

motion must be brought “within a reasonable time” — at most, “no more than a year

after the entry of the judgment” for motions based on mistake, inadvertence surprise,

or excusable neglect. Id. at 60(c)(1).

In determining whether a party has suffered from excusable neglect, the Court

must consider “(1) the danger of prejudice to the [other party], (2) the length of the

delay and its potential impact on judicial proceedings, (3) the reason for the delay,

including whether it was within the reasonable control of the movant, and (4) whether

the movant acted in good faith.” Chapman v. Ring’s End, Inc., No. 17-CV-01084

(VAB), 2021 WL 2186410, at *4 (D. Conn. May 28, 2021) (citation omitted). In

contrast, reconsideration per Rule 60(b)(6) — for “any other reason that justifies

relief” — is only warranted under “extraordinary circumstances.” See

Ackermann v. United States, 340 U.S. 193, 199, 202 (1950) (citation omitted).

Motions for reconsideration are subject to a “strict” standard, where

“reconsideration will generally be denied unless the moving party can point to

controlling decisions or data that the court overlooked.” Shrader v. CSX Transp.,

Inc., 70 F.3d 255, 257 (2d Cir. 1995). Such motions are only granted “when the

[movant] identifies ‘an intervening change of controlling law, the availability of new

evidence, or the need to correct a clear error or prevent manifest injustice.’” Kolel Beth

Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013)

(citation omitted).

DISCUSSION

Plaintiff’s opposition — filed twenty days after judgment entered in this case

— is timely as a motion for consideration under Rules 59(e) and 60(b). While the bar

for reconsideration motions is high, it is warranted to “correct a clear error” —

specifically, the Court’s dismissal for failure to prosecute. See LeSane v. Hall’s Sec.

Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (citation omitted) (characterizing

dismissal for failure to prosecute as “a harsh remedy to be utilized only in extreme

situations”); Azzarmi v. Neubauer, No. 20-CV-9155 (KMK), 2023 WL 6255678, at *2

(S.D.N.Y. Sep. 26, 2023) (withdrawing the previous dismissal for failure o

prosecution, in part because the court “did not explicitly consider a lesser sanction”).

Before dismissing for failure to prosecute under FRCP Rule 41(b), a court must

consider “(1) the duration of the plaintiff’s failure to comply with the court order, (2)

whether plaintiff was on notice that failure to comply would result in dismissal, (3)

whether the defendants are likely to be prejudiced by further delay in the

proceedings, (4) a balancing of the court’s interest in managing its docket with the

plaintiff’s interest in receiving a fair chance to be heard, and (5) whether the judge

has adequately considered a sanction less drastic than dismissal.” Heendeniya v. St.

Joseph’s Hosp. Health Ctr., 830 F. App’x. 354, 357 (2d Cir. 2020) (summary order)

(citation omitted). It is among “the harshest of sanctions,” Baptiste v. Sommers, 768

F.3d 212, 217 (2d Cir. 2014) (citation omitted), and “district courts ‘should be

especially hesitant’ to dismiss a pro se litigant’s complaint for procedural

deficiencies,” Styles v. Goord, 431 F. App’x. 31, 32 (2d Cir. 2011) (summary order).

Plaintiff’s delay in complying with the Court order (before the case was

dismissed) spanned only about a month: he was originally directed to file an

opposition by February 9 and 18, 2026, and the case was dismissed on March 9, 2026

— after he missed his March 6, 2026 deadline. This delay was not significant enough

to prejudice Defendants or support dismissal. See LeSane, 239 F.3d at 210 (finding

that plaintiff’s non-compliance with a court order lasted “barely a month” and “does

not much weigh in favor of dismissal”); Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)

(noting that a delay of 39 days did not prejudice defendants, who “never even

complained about [plaintiff’s] tardiness”); cf. Heendeniya, 830 F. App’x. at

358. Further, while Plaintiff was on notice that he risked dismissal for failure to

prosecute, the warning was brief and technical, and thus this factor weighs only

slightly in favor of dismissal. See LeSane, 239 F.3d at 210.

With respect to balancing the Court’s docket with Plaintiff’s interest in being

heard, the Second Circuit has noted that “[t]here must be compelling evidence of an

extreme effect on court congestion before a litigant’s right to be heard is

subrogated.” Lucas, 84 F.3d at 535. No doubt Plaintiff has been a serial filer of

letters, affidavits, and exhibits in this case. He made at least nineteen submissions,

not including versions of his Second Amended Complaint, between January and

September 2025 — many of which are either duplicate filings or contain redundant

documentation. However, besides his opposition, he had not filed anything on the

docket since December 2025 — months before he was warned of dismissal for failure

to prosecute on February 24, 2026. More importantly, the relevant congestion for

Rule 41(b) dismissal purposes are “irrelevant or obstructionist filings” made during

a plaintiff’s delay, not beforehand.9 See LeSane, 239 F.3d at 210; Coats v. Dep’t of

Veteran Affs., 268 F. App’x 125, 127 (2d Cir. 2008) (summary order).

Finally, while the Court’s warnings regarding a failure to prosecute mentioned

that Defendants’ motions could be treated as unopposed, it may have been more

suitable to resolve the motions to dismiss, rather than dismiss under Rule 41(b). See

LeSane, 239 F.3d at 211 (“[W]e wish to make clear that in cases such as these,

resolutions on [a dispositive motion] . . . are generally to be preferred to dismissals

under Rule 41(b).”).

CONCLUSION

For the reasons discussed above, Plaintiff’s opposition — construed as a

motion for reconsideration — is GRANTED. The Court hereby vacates its Order

Dismissing Case dated March 9, 2026. The Clerk of Court is respectfully directed to

reopen the above-captioned case.

The Court will proceed to consider the merits of Defendants’ motions to

dismiss, along with Plaintiff’s opposition. If Defendants wish to file a reply to

Plaintiff’s opposition, they may do so within thirty days of this Order.

The Clerk of Court is respectfully requested to mail a copy of this Order to

Plaintiff at the address provided in his opposition, ECF No. 88, and to note the

mailing on the docket.

9 The Court further notes that, while at times duplicative, Plaintiff’s filings

were never obstructionist or irrelevant.

SO ORDERED.

Dated: June 1, 2026 /s/ Nina R. Morrison

Brooklyn, New York Nina R. Morrison

United States District Judge