Opinion
17-cv-1486 (ENV) (RLM)
05-05-2018
James Philogene-Bey, Plaintiff, v. New York City Police Commissioner James P. O'Neill, in his individual and official capacity, Mayor Bill De Blasio, in his individual and official capacity, The City of New York, New York City Police Office Roman Rushtlion, New York City Police Officer Lt. Lee Lapkeung, in his individual and official capacity, New York City Police Officer Sgt. Sandoval, in his individual and official capacity, New York City Police Officer Sgt. Olsen, in his individual and official capacity, and New York City Police John Doe, in his individual and official capacity, Defendants.
Memorandum & Order
In December 2017, Chief Magistrate Judge Roanne L. Mann entered an order granting a stay of this civil case pending resolution of a related state court criminal proceeding. Plaintiff James Philogene-Bey has objected to Judge Mann's order. For the reasons that follow, his objections are overruled.
Background
On March 16, 2017, Philogene-Bey filed a § 1983 complaint against various defendants, raising false arrest and malicious prosecution claims relating to a traffic stop, subsequent arrest, and open criminal case in Kings County Criminal Court. Dkt. No. 1. It was that open proceeding that prompted defendants to seek a stay. Dkt. No. 37. After an initial conference before Judge Mann, on November 1, 2017, Dkt. No. 39, defendants renewed their motion, offering the indictment resulting from facts at the core of Philogene-Bey's claims here. Dkt. No. 40 & 40-1. In response, plaintiff filed a self-styled "Motion to Vacate Matters Related at Nisi Prius Court." Dkt. No. 42. In her December 27, 2017, Memorandum and Order, Judge Mann granted the stay and denied Philogene-Bey's motion to vacate. Dkt. No. 44. On February 1, 2018, plaintiff filed a four page document, which the Court liberally construes as an appeal of Judge Mann's order staying this action. Dkt. No. 45.
Discussion
When a magistrate judge has entered an order in a civil case, parties have 14 days to file an appeal. 28 U.S.C. § 636(b)(1). Where a party has timely appealed and specifically pointed out claimed errors, a district court reviews the order de novo. 4 B's Realty 1530 CR39, LLC v. Toscano, 818 F. Supp. 2d 654, 658 (E.D.N.Y. 2011). Where an appeal to a non-dispositive order is untimely, the appealing party has generally waived his right to object. Caidor v. Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008). Finally, where the contentions are conclusory or general, a district court reviews the order for plain error. Toscano, 818 F. Supp. 2d at 659.
Philogene-Bey's appeal fails. It suffers from two fatal defects. First, his appeal was untimely filed, some two weeks past the deadline to file. He has, therefore, waived his right to appeal. Caidor, 517 F.3d at 604. Second, if it is any consolation to him, even if the appeal was timely or could be construed as such, Philogene-Bey's general non-specific claim of error in Judge Mann's well-reasoned decision, which imposed a stay but did not dismiss the case, does not pass muster. Whether under the applicable plain error review, see Toscano, 818 F. Supp. 2d at 659, or under de novo review, there is no error. Consequently, his appeal is dismissed.
Conclusion
In line with the foregoing, plaintiff's appeal from the order of Judge Mann imposing a stay of proceedings is dismissed.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 920-21, 8 L. Ed. 2d 21 (1962).
The Clerk of Court is directed to mail a copy of the order to plaintiff. Dated: Brooklyn, New York
May 5, 2018
/S/ USDJ ERIC N. VITALIANO
ERIC N. VITALIANO
United States District Judge