Bogomazov v. U.S. Department of Homeland Security ( 2022 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 20-24482-CIV-GAYLES/TORRES VITALY VLADIMIROVICH BOGOMAZOV, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. ___________________________________/ ORDER THIS CAUSE comes before the Court on Defendants the United States of America, the United States Department of Homeland Security, the United States Immigration and Customs Enforcement, Officer George Williams, and Officer Ralph Angulo’s (collectively “Defendants”), Motion to Dismiss First Amended Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim (the “Motion”). [ECF No. 18]. The Motion was referred to Magistrate Judge Jacqueline Becerra, pursuant to 28 U.S.C. § 636(b)(1)(B), for a Report and Recommendation. [ECF No. 26]. On February 27, 2022, Judge Becerra issued her report recommending that the Motion be granted in part and denied in part (the “Report”). [ECF No. 29]. In particular, Judge Becerra found that, based on the allegations in the Amended Complaint, (1) the Court has subject matter jurisdiction over Plaintiff’s claims relating to Plaintiff’s first arrest but not over claims relating to Plaintiff’s second arrest; (2) at this stage, qualified immunity does not bar the claims against Officers Williams and Angelo; (3) Plaintiff has standing to seek declaratory relief; and (4) Plaintiff fails to state his claims under Administrative Procedures Act or the Federal Tort Claims Act for negligence. As a result, the Report recommends that the Court dismiss Counts II, III, VII, and VIII and allow Counts I, IV, V, and VI to proceed. Id. Plaintiff and Defendants have timely objected to the Report [ECF No. 30, 31]. A district court may accept, reject, or modify a magistrate judge’s report and recommendation. 28 U.S.C. § 636(b)(1). Those portions of the report and recommendation to which objection is made are accorded de novo review, if those objections “pinpoint the specific findings that the party disagrees with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009); see also Fed. R. Civ. P. 72(b)(3). Any portions of the report and recommendation to which no specific objection is made are reviewed only for clear error. Liberty Am. Ins. Grp., Inc. v. WestPoint Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001); accord Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). The Court has conducted a de novo review of the record and the law and agrees with Judge Becerra’s well-reasoned analysis and recommendation. Accordingly, after careful consideration, it is ORDERED AND ADJUDGED as follows: (1) Judge Becerra’s Report and Recommendation [ECF No. 29] is ADOPTED in FULL; (2) Defendants the United States of America, the United States Department of Homeland Security, the United States Immigration and Customs Enforcement, Officer George Williams, and Officer Ralph Angulo’s Motion to Dismiss First Amended Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim, [ECF No. 18], is GRANTED in part and DENIED in part as follows: a. Counts II and VII are DISMISSED with prejudice. b. Counts III and VIII are DISMISSED without prejudice. DONE AND ORDERED in Chambers at Miami, Florida, this 14h day of March, 2022. Df DARRIN P. GAYLES UNITED STATES DI CT JUDGE