Ahmed v. Miller et al
| Mohammad Mokhtar Ahmed |
| John Miller, Unidentified NYP Intelligence Bureau Officers and Unidentified NYPD Intelligence Bureau Officers |
| 1:2021cv06086 |
| November 2, 2021 |
| US District Court for the Eastern District of New York |
| Sanket J Bulsara |
| Rachel P Kovner |
| Civil Rights: Other |
| 42 U.S.C. § 1983 Civil Rights Act |
| Plaintiff |
Docket Report
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ORDER: Plaintiff's motions papers at #12 request that the Court amend the summons to correct a purported typo. Pl.'s Mot. at 6-7 (Dkt. #12). The Court already ordered a corrected summons to be reissued on 12/7/2021, and that summons was mailed to plaintiff on 12/9/2021. Accordingly, plaintiff's request for an amended summons is denied. Plaintiff also states that a "Rule 59(e)" motion is "pending" as to the Courts Order dated 11/30/2021. Pl.'s Mot. at 6. Plaintiff is advised that no such motion appears on the docket.Plaintiff appears to move for leave to file an amended complaint. See Pl.'s Mot. at 8. Plaintiff's request is granted. Plaintiff may file an amended complaint within thirty days of this order. Plaintiff is advised that "an amended pleading ordinarily supersedes the original and renders it of no legal effect," In re Crysen/Montenay Energy Co., 226 F.3d 160, 162 (2d Cir. 2000), and that plaintiff's amended complaint should contain all factual allegations that are relevant to his claims. Plaintiff's motion for a writ pursuant to 28 U.S.C. 1651(a) to compel the United States Marshals Service to seize certain property that plaintiff alleges was taken from him is denied without prejudice. 28 U.S.C. 1651(a) gives this Court the power to "issue all writs necessary or appropriate in aid of [its]... jurisdiction[] and agreeable to the usages and principles of law." 28 U.S.C. 1361 states that "the district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." "[M]andamus is an extraordinary remedy, intended to aid only those parties to whom an official or agency owes 'a clear nondiscretionary duty.'" Escaler v. U.S. Citizenship & Immigration Servs., 582 F.3d 288, 292 (2d Cir. 2009) (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)). "A party who seeks a writ of mandamus must show a 'clear and indisputable right' to its issuance." Id. (quoting Miller v. French, 530 U.S. 327, 339 (2000)). Plaintiff fails to show that that he is owed a clear nondiscretionary duty by the Marshals Service to recover his property or that he has a clear and indisputable right to the issuance of a writ. Plaintiff invokes 28 U.S.C. 566(a) and (c), which describes the mission of the Marshals Service and provides that the Marshals Service shall execute writs, and he cites 18 U.S.C. 1597, which makes it a crime to confiscate or possess another person's passport. But neither statute imposes a nondiscretionary duty on the Marshals Service to recover a stolen passport or gives plaintiff a clear and indisputable right on the facts alleged in plaintiff's motion papers. Accordingly, plaintiff's request for a writ is denied. Plaintiff may file a renewed request for a writ after he effects service on defendants, if he so desires. Ordered by Judge Rachel P. Kovner on 12/9/2021. (JB)
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| Filing 11 Corrected Summons Reissued as to John Miller, Unidentified NYPD Intelligence Bureau Officers. (Herrera, Isaiah) |
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ORDER: The Clerk of Court is respectfully directed to reissue the summons at #10 to include information for all defendants. Ordered by Judge Rachel P. Kovner on 12/7/2021. (JB)
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| Filing 12 NOTICE of Memorandum of Law filed by Mohammad Mokhtar Ahmed. (Herrera, Isaiah) |
| Filing 10 Summons Reissued as to Unidentified NYPD Intelligence Bureau Officers. (Herrera, Isaiah) |
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ORDER: Plaintiff objects to Judge Bulsara's order dated 11/15/2021 under Federal Rule of Civil Procedure 72(a) and 28 U.S.C. 636(b)(1)(A), asks that this Court handle all pretrial matters except for those listed in the Court's Individual Rules, and asks that the summons issued on 11/03/2021 be amended. Plaintiff also asks that the Court certify this order for interlocutory appeal under 28 U.S.C. 1292(b). Plaintiff's request to amend the summons is granted, but his other requests for relief are denied. The district court judge "must consider timely objections" to an order by a magistrate judge deciding a non-dispositive pretrial matter and "modify or set aside any part of the order that is clearly erroneous or is contrary to law." Fed. R. Civ. P. 72(a); see 28 U.S.C. 636(b)(1)(A). No part of Judge Bulsara's order is clearly erroneous or contrary to law. Plaintiff first objects to Judge Bulsara's statement that the complaint in this action was filed on 10/20/2021. Pl.'s Mot at 6. Plaintiff asserts that the complaint was filed on 11/2/2021, the date that this case was transferred to this Court from the Southern District of New York. See ibid. Plaintiff is incorrect. The docket reflects that he filed his complaint in the Southern District of New York on 10/20/2021, and that the case was subsequently transferred. Plaintiff's objection that the deadline for service on defendants should be 1/31/2022, not 1/18/2022 is therefore baseless. Federal Rule of Civil Procedure 4(m) requires service "within 90 days after the complaint is filed." Fed. R. Civ. P. 4(m). Indeed, "Rule 4(m) contemplates that service after transfer will occur more quickly" because the complaint would have been already filed prior to transfer. Hansan v. Fairfax Cnty. Public Sch. Bd., No. 9-CV-558 (GBL), 2010 WL 1779679, at *4 (E.D. Va. Apr. 30, 2010). Although a court may extend the time to serve defendants for "good cause" if plaintiff fails to effect timely service, Fed. R. Civ. P. 4(m), and courts in this Circuit have granted extensions for pro se litigants after transfer where the Marshals Service failed to effect proper service, see Odom v. Baker, No. 2-CV-757F, 2005 WL 755746, at *2 (W.D.N.Y. Mar. 31, 2005), plaintiff has identified no reason why he is entitled to or needs a 13-day extension on the deadline set by Rule 4(m). Plaintiff does not appear to have even attempted service yet. The deadline set by Judge Bulsara pursuant to Rule 4(m) is not "clearly erroneous" or "contrary to law," and so plaintiff's objection is overruled. Fed. R. Civ. P. 72(a). Plaintiff also objects to Judge Bulsara's statement that plaintiff paid the filing fee on 10/27/2021. The docket reflects that the finance department processed plaintiff's check on 10/26/2021, and that payment was reflected in a docket entry entered on 10/27/2021. Judge Bulsara's statement is therefore not "clearly erroneous," Fed. R. Civ. P. 72(a), and the date that plaintiff paid the filing fee appears immaterial to the substance of Judge Bulsar's order concerning the date by which plaintiff must serve process on defendants. To the extent that plaintiff asks that all pretrial matters be conducted by this Court except those specified as automatically referred in the Court's Individual Rules, see Pl.'s Mot. at 4-5; Indiv. Rule III, plaintiff's request is denied. Under Local Civil Rule 72.2, a magistrate judge assigned to a case at the commencement of the action is "empowered to act with respect to all non-dispositive pretrial matters unless the assigned District Judge orders otherwise." I see no justification to "order[] otherwise" in this case. Insofar as plaintiff wishes to hold conferences with opposing counsel and Judge Bulsara via video-conference instead of phone in the future, he should direct a request to Judge Bulsara.Plaintiff points out that the summons issued on 11/03/2021 includes a typo, "Unidentified NYP Intelligence Bureau Officers." That line in the summons should read "Unidentified NYPD Intelligence Bureau Officers." Although the typo would likely not impede plaintiff's ability to serve defendants, the Clerk of Court is respectfully directed to reissue the summons with the typo corrected.Finally, plaintiff asks the Court to certify this order for interlocutory appeal under 28 U.S.C. 1292(b). Pl.'s Mot. at 13. That statute permits a district judge to certify in writing that an order in a civil action not otherwise appealable "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. 1292(b). Plaintiff provides no explanation for how this order meets any of those three criteria. Indeed, an immediate appeal from this order would not advance the termination of the litigation because plaintiff still has ample time to serve defendants and the assignment of all pretrial matters to this Court would slow the progress of this litigation. And this order does not involve any disputed questions of law. Plaintiff's request for certification is therefore denied. Ordered by Judge Rachel P. Kovner on 11/30/2021. (JB)
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| Filing 9 MOTION to Amend/Correct/Supplement , MOTION for Reconsideration by Mohammad Mokhtar Ahmed. (Attachments: #1 Exhibits A-C) (Herrera, Isaiah). |
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Filing 8
ORDER: The Honorable Rachel P. Kovner has assigned this case to me for all pretrial purposes. The Court's records reflect that the pro se complaint in this action was filed on October 20, 2021. By Order dated October 26, 2021, the action was transferred from the United States District Court for the Southern District of New York. Plaintiff paid the filing fee on October 27, 2021. Rule 4(m) of the Federal Rules of Civil Procedure provides: If a defendant is not served within 90 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. Accordingly, if service is not made upon the defendants by January 18, 2022, or plaintiff fails to show good cause why such service has not been effected, it will be recommended that the Court dismiss this action without prejudice. So Ordered by Magistrate Judge Sanket J. Bulsara on 11/15/2021. (Morrow, Emily)
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| Filing 7 Summons Issued as to John Miller, Unidentified NYP Intelligence Bureau Officers. (Herrera, Isaiah) |
| Filing 6 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Neptune, Pierre) |
| Filing 5 Case transferred in from District of New York Southern; Case Number 1:21-cv-08637. Original file certified copy of transfer order and docket sheet received. |
| Pro Se Payment of Fee Processed: $402.00 Check processed by the Finance Department on 10/26/2021, Receipt Number 465401288272. (jgl) [Transferred from New York Southern on 11/2/2021.] |
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Filing 4
TRANSFER ORDER: The Clerk of Court is directed to transfer this action to the United States District Court for the Eastern District of New York. Whether Plaintiff should be permitted to proceed further without prepayment of fees is a determination to be made by the transferee court. A summons shall not issue from this Court. This order closes this case. The Court certifies under 28 U.S.C. 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). The Clerk of Court is further directed to mail a copy of this order to Plaintiff and note service on the docket. SO ORDERED. (Signed by Judge Laura Taylor Swain on 10/26/21) (rdz) Transmission to Docket Assistant Clerk for processing. Transmission to Office of the Clerk of Court for processing. [Transferred from New York Southern on 11/2/2021.]
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| Mailed a copy of #4 Order, to Mohammad Mokhtar Ahmed, 18 Lisa Lane, Staten Island, NY 10312. (dsh) [Transferred from New York Southern on 11/2/2021.] |
| NOTICE OF CASE REASSIGNMENT - SUA SPONTE to Judge Laura Taylor Swain. Judge Unassigned is no longer assigned to the case. (aea) [Transferred from New York Southern on 11/2/2021.] |
| Filing 3 REQUEST FOR ISSUANCE OF SUMMONS as to Unidentified NYP Intelligence Bureau Officers, re: #1 Complaint. Document filed by Mohammad Mokhtar Ahmed. (sac) [Transferred from New York Southern on 11/2/2021.] |
| Filing 2 REQUEST FOR ISSUANCE OF SUMMONS as to John Miller, re: #1 Complaint. Document filed by Mohammad Mokhtar Ahmed. (sac) [Transferred from New York Southern on 11/2/2021.] |
| Filing 1 COMPLAINT against John Miller, Unidentified NYP Intelligence Bureau Officers. Document filed by Mohammad Mokhtar Ahmed. (Attachments: #1 Civil Cover Sheet) (sac) [Transferred from New York Southern on 11/2/2021.] |
| Case Designated ECF. (sac) [Transferred from New York Southern on 11/2/2021.] |
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