Scull v. Hennegan et al, No. 1:2015cv00309 - Document 152 (W.D.N.Y. 2018)

Court Description: DECISION AND ORDER adopting Magistrate Judge Jeremiah J. McCarthy's Report and Recommendation 119 . Pro se Plaintiff's 102 motion for partial summary judgment is denied. This matter is recommitted to Magistrate Judge McCarthy for further proceedings. A copy of the Decision and Order has been mailed to John T. Scull, 422 10th Street, Niagara Falls, NY 14303. SO ORDERED. Signed by Hon. Richard J. Arcara on 11/1/2018. (LAS)

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Scull v. Hennegan et al Doc. 152 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK JOHN T. SCULL, Plaintiff, DECISION AND ORDER 15-CV-309A v. PATRICK K. HENNEGAN, THOMAS G. EWING, ROGER TREVINO and JOHN P. BARTOLOMEI, BRIAN DALPORTO, NIAGARA FALLS REDEVELOPMENT LLC, 11TH STREET PROPERTIES LLC, CLARKSVILLE LAND COMPANY LLC, HOWARD MILSTEIN (owner NFR), CITY OF NIAGARA FALLS NEW YORK, Defendants. This case was referred to Magistrate Judge Jeremiah J. McCarthy, pursuant to 28 U.S.C. § 636(b)(1)(B). On May 14, 2018, Judge McCarthy filed a Report and Recommendation (Dkt. No. 119), recommending that pro se Plaintiff John T. Scull’s motion for partial summary judgment (Dkt. No. 102) be denied. On June 1, 2018, the Plaintiff filed objections to the Report and Recommendation (Dkt. No. 121). Each Defendant has responded to the Plaintiff’s objections. The Plaintiff has also filed “supplementing objections” (Dkt. 122) and a motion to “amend his objections” (Dkt. 133). Given the Plaintiff’s pro se status, and in light of the fact that no party has objected to these procedurally-irregular filings, the Court has considered these documents as part of the Plaintiff’s original objections. Dockets.Justia.com Pursuant to 28 U.S.C. § 636(b)(1), this Court must review de novo those portions of the Report and Recommendation to which objections have been made. Upon de novo review, and after reviewing the submissions from the parties, the Court adopts Judge McCarthy’s recommendations. As Judge McCarthy’s summary of the record demonstrates, the Plaintiff has not shown that, when the facts are viewed in the light most favorable to the Defendants, there is no genuine dispute over whether (1) the Plaintiff is the owner of the 8' x 12' bulldog kiosk that was allegedly stolen; (2) the municipal defendants are entitled to qualified immunity; and (3) the City of Niagara Falls is liable for the Plaintiff’s claims. See generally Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Thus, for the reasons set forth in Magistrate Judge McCarthy’s Report and Recommendation, the Plaintiff’s motion for partial summary judgment is denied. Finally, the Plaintiff’s objections suggest, e.g., Dkt. 133 at 2, that the Plaintiff intends to attempt to take an interlocutory appeal if the Court denies his motion for partial summary judgment. Because “the filing of a notice of appeal is an event of jurisdictional significance,” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982), and because a federal court has “an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party,” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006), the Court sua sponte considers whether the Plaintiff’s anticipated notice of appeal will divest the Court of subject-matter jurisdiction. “A district court’s denial of summary judgment is ordinarily not an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291,” and none of the limited exceptions to the final-decision rule appears to be implicated by this Decision and Order. Tolbert v. Queens College, 164 F.3d 132, 138 (2d Cir. 1999). See also Plumhoff v. Rickard, 134 S. Ct. 2012, 2018 (2014) (“An order denying a motion for summary judgment is generally not a final decision within the meaning of § 1291 and is thus generally not immediately appealable.”) The Plaintiff’s anticipated notice of appeal therefore appears to be premature. Although the filing of a notice of appeal typically divests a district court of subjectmatter jurisdiction, see Griggs, 459 U.S. at 58, a premature notice of appeal does not do so. See United States v. Rodgers, 101 F.3d 247, 251-52 (2d Cir. 1996). The Court therefore concludes that, notwithstanding the Plaintiff’s anticipated notice of interlocutory appeal, the Court retains subject-matter jurisdiction over this case. The matter is recommitted to Judge McCarthy for further proceedings. IT IS SO ORDERED. ___s/Richard J. Arcara__________ HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT COURT Dated: November 1, 2018

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