Perez v. Evans (Sept. 25, 2025)

Case details
Full caption
Eric Andrew Perez v. Dr. Neil C. Evans, et al.
Country
United States
Jurisdiction
Federal
Decided
Sept. 25, 2025
Disposition
Motion Denied
Majority
Vernon S. Broderick (J.) (unanimous Court)
ERIC ANDREW PEREZ, Plaintiff, v. DR. NEIL C. EVANS, et al.,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 2726792Only the Westlaw citation is currently available.United States District Court, S.D. New York.ERIC ANDREW PEREZ, Plaintiff,v.DR. NEIL C. EVANS, et al., Defendants.24-CV-356 (VSB) (SN)|Filed 09/25/2025Editor's Note: This decision contains citation referencesthat are incorrect or do not actually exist. These invalidcitations appeared in the original court opinion and have beenpreserved as written since they are part of the official record.Any links to these invalid citations have been removed.Attorneys and Law FirmsAppearances:Eric Andrew Perez, San Antonio, FL, Pro se PlaintiffRebecca Lynn Salk, United States Attorney's Office for theSouthern District of New York, New York, NY, Counsel forDefendants Dr. Neil C. Evans, Carol Johnson, George ReedGrimes, Damian Williams, and Melanie JayJodyann Galvin, Cheyenne Nicole Freely, Hodgson RussLLP, Buffalo, NY, Counsel for Defendant Dr. Mark J.MulliganAlexander Cousins, Arthur Edward Brown, Arnold & PorterKaye Scholer LLP, New York, NY, Counsel for DefendantsAstraZeneca AB, AstraZeneca Pharmaceuticals LP, andAstraZeneca UK Ltd.OPINION & ORDERVernon S. Broderick United States District Judge*1 Before me are pro se Plaintiff Eric Andrew Perez'sobjections to Magistrate Judge Sarah Netburn's Reportand Recommendation, which recommends that I dismissPlaintiff's Amended Complaint with prejudice. For thereasons that follow, Plaintiff's objections are OVERRULED,Judge Netburn's Report and Recommendation is ADOPTEDin its entirety, and Plaintiff's Amended Complaint isDISMISSED with prejudice.I. Factual BackgroundPlaintiff Eric Andrew Perez (“Plaintiff” or “Perez”), a veteranof the United States Marine Corps, participated in a clinicaltrial of AstraZeneca's COVID-19 vaccine at the Departmentof Veterans Affairs (“VA”). (Doc. 37 (“Am. Compl.”) ¶¶ 6,21.) Perez claims that he received the vaccine in two doses,on December 22, 2020, and January 19, 2021. (Id. 37; seealso Doc. 132 (“Report”) at 2.) Immediately after receivingthe first dose of the vaccine, Plaintiff states that he begansuffering from a host of medical issues, including migraines,non-alcoholic fatty liver disease, and persistent peroneal veinthrombosis in his right calf, all of which Plaintiff attributes tothe vaccine. (Am. Compl. ¶¶ 31, 33.)In February 2021, the director of the vaccine study informedPlaintiff that he had not received the vaccine and insteadreceived a placebo. (Id. 29.) Plaintiff alleges that the portionof his medical record indicating he received a placebo isfraudulent and was created as part of a broader conspiracy.(Id. ¶¶ 22, 29.)Plaintiff then filed a claim through the Health Resources& Services Administration's Countermeasures InjuryCompensation Program (“CICP”), (id. ¶¶ 27, 35), whichis a federal program that compensates serious injuries ordeaths that occur because of the administration of certaincountermeasures during public health emergencies, (seeReport at 3 (citing 42 U.S.C. § 247d-6e; 42 C.F.R. § 110)). TheCOVID-19 vaccine was declared a “covered countermeasure”on March 17, 2020, pursuant to the Public Readiness andEmergency Preparedness Act (“PREP Act”). Id. (citing 85Fed. Reg. 15,198, at 15202 (Mar. 17, 2020).) CICP requestedadditional information and records from Plaintiff about hisclaim, and Plaintiff in turn filed a HIPPA request with theVA Medical Records Office requesting documentation ofhis participation in the AstraZeneca study. (Am. Compl. ¶¶43–45.) On September 13, 2023, the VA Medical RecordsOffice denied Plaintiff's request due to his failure to properlycomplete the necessary paperwork. (See Doc. 1-1 at 6.)Based on these events, Plaintiff asserts that his CICPclaim is being “deliberately obstructed” by members of thefederal government. (Am. Compl. 21.) Plaintiff alleges theexistence of a widespread racketeering conspiracy between allDefendants to cover up experimentation on veterans throughthe COVID-19 vaccination program. (Id. at 9; see also id. ¶¶
ERIC ANDREW PEREZ, Plaintiff, v. DR. NEIL C. EVANS, et al.,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.229, 35.) He claims his medical records have been deliberatelyaltered as part of a cover-up of the conspiracy, and that certainDefendants have illegally cloned his electronic devices andiCloud, allowing them to delete and alter his records. (Id. ¶¶27, 29, 35, 38.)II. Procedural History*2 On January 16, 2024, pro se Plaintiff filed his complaint.(Doc. 1.) That same day, Plaintiff filed a consent to receiveelectronic service through the ECF system. (Doc. 4.) OnApril 3, 2024, I referred this case to Magistrate Judge RobynF. Tarnofsky for general pretrial management. (Doc. 25.)On April 9, 2024, the referral was reassigned to MagistrateJudge Sarah Netburn. On April 25, 2024, Plaintiff filed anAmended Complaint against various Defendants, includingDr. Neil C. Evans, Carol Johnson, Dr. Mark J. Mulligan,George Reed Grimes, Damian Williams, AstraZeneca LP,AstraZeneca AB, AstraZeneca UK Lmdt, Melanie Jay,AstraZeneca Pharmaceuticals LP, and AstraZeneca UK Ltd.(Am. Compl.)On September 6, 2024, Defendant Mark J. Mulliganmoved to dismiss Plaintiff's Amended Complaint. (Doc. 99.)The same day, Defendants AstraZeneca AB, AstraZenecaPharmaceuticals LP, and AstraZeneca UK Ltd. (collectively,the “AstraZeneca Defendants”) also moved to dismiss,(Doc. 101), as did Defendants Neil C. Evans, George ReedGrimes, Melanie Jay, Carol Johnson, and Damian Williams(collectively, the “Federal Defendants”), (Doc. 103). OnDecember 11, 2024, I referred the motions to dismiss toMagistrate Judge Netburn for a Report and Recommendation.(Doc. 125.)On May 15, 2025, Magistrate Judge Netburn issueda thorough 27-page Report and Recommendation (the“Report”), recommending that I grant the motions to dismissand dismiss Plaintiff's Amended Complaint with prejudice.(See Report at 26.) The Report notes that because Plaintiffcannot allege new facts to cure the deficiencies in theAmended Complaint, amendment would be futile withrespect to all of his claims. (Id. at 24.)On May 22, 2025, I granted Plaintiff's request to extend histime to object to the Report to July 14, 2025. (Doc. 135.) OnJuly 14, 2025, Plaintiff filed objections to the Report. (Doc.136 (“Obj.”).) On July 28, 2025, Defendant Mark Mulliganfiled a response to Plaintiff's objections, (Doc. 138), as did theAstraZeneca Defendants, (Doc. 139). On July 29, 2025, theFederal Defendants filed a response to Plaintiff's objections.(Doc. 140.)On July 28, 2025, Plaintiff moved for a temporary restrainingorder. (Doc. 141.) On August 1, 2025, I issued an orderinforming Defendants that they need not respond to themotion for a temporary restraining order until after I issue myopinion regarding the pending Report. (Doc. 142.)On September 19, 2025, Plaintiff filed a motion “requestingthat the Court enter an emergency order directing theimmediate preservation of all evidence and informationpotentially relevant to the above-captioned matter,” (Doc.144 at 1), in addition to another motion for preservation ofevidence, (Doc. 145), and a proposed order granting Plaintiff'smotions, (Doc. 146).III. Legal StandardAfter a magistrate judge issues a report and recommendation,a district court may “accept, reject, or modify, in wholeor in part, the findings or recommendations made by themagistrate judge.” 28 U.S.C. § 636(b)(1)(C). “To acceptthe report and recommendation of a magistrate [judge], towhich no timely objection has been made, a district courtneed only satisfy itself that there is no clear error on theface of the record.” Trs. of Drywall Tapers & Pointers Loc.Union No. 1974 Benefit Funds v. Cite C Corp., No. 17-CV-9304, 2019 WL 1745743, at *1 (S.D.N.Y. Apr. 18, 2019)(internal quotation marks omitted). Where specific objectionsare made, the court is obligated to review the contested issuesde novo. See Fed. R. Civ. P. 72(b)(3). However, when “theobjecting party makes only conclusory or general objections,or simply reiterates the original arguments,” the court willreview the report only for clear error. Jones v. Smith, No.09-CV-6497, 2012 WL 1592190, at *1 (S.D.N.Y. May 7,2012) (collecting cases). “Moreover, parties may not raisenew arguments for the first time in objections to a reportand recommendation.” Erickson v. Jernigan Cap., Inc., 692 F.Supp. 3d 114, 120 (S.D.N.Y. 2023). In other words, “a partyis not to be afforded a second bite at the apple when filingobjections to a Report and Recommendation, as the goal ofthe federal statute providing for the assignment of cases tomagistrate[ ] [judges] is to increase the overall efficiency ofthe federal judiciary.” Michaud v. Nippon Cargo Airlines, Co.,No. 09-CV-3375, 2011 WL 5402642, at *1 (E.D.N.Y. Nov.7, 2011) (internal quotation marks and alterations omitted).Even where exercising de novo review, a “district court neednot ... specifically articulate its reasons for rejecting a party'sobjections or for adopting a magistrate judge's report and
ERIC ANDREW PEREZ, Plaintiff, v. DR. NEIL C. EVANS, et al.,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3recommendation in its entirety.” Morris v. Loc. 804, Int'l Bhd.of Teamsters, 167 F. App'x 230, 232 (2d Cir. 2006) (summaryorder).*3 Pro se complaints are afforded “special solicitude” andmust be interpreted to “raise the strongest arguments thatthey suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d471, 477 (2d Cir. 2006) (internal quotation marks omitted).However, a pro se litigant is still “obligated to comply withthe relevant rules of procedural and substantive law.” Doe v.Torres, No. 05-CV-3388, 2006 WL 290480, at *3 (S.D.N.Y.Feb. 8, 2006). Accordingly, “where a pro se party's objectionsto a report and recommendation are ‘conclusory or general,’or where a plaintiff ‘simply reiterates his original arguments,’the report should be reviewed only for clear error.” DeGratev. Broad. Music, Inc., No. 12-CV-1700, 2013 WL 639146, at*2 (S.D.N.Y. Feb. 20, 2013) (quoting Walker v. Vaughan, 216F. Supp. 2d 290, 292 (S.D.N.Y. 2002)).IV. DiscussionPlaintiff filed 81 pages of objections, in addition to 184pages of exhibits. Without counting the pages of exhibits,Plaintiff's objections alone are three times the length of theReport itself, which is far longer than the permissible lengthof memoranda under the Local Rules in this District, seeS.D.N.Y. Civ. Rule 7.1, as well as my Individual Rules, seeRule 4.B, Individual Rules & Practices in Civil Cases forJudge Vernon S. Broderick, and contrary to the purpose ofreferrals under the Federal Magistrates Act, which is to createefficiency. See United States v. Gardin, 451 F. Supp. 2d 504,507 (W.D.N.Y. 2006).Plaintiff acknowledges that he “used Chat GPT to drafthis first draft of this submission.”1 (Obj. 2 n.1.) Plaintiffincludes seventeen footnote citations to ChatGPT throughouthis objections, including, for instance, a citation to a copyof a conversation in which an anonymous user, presumablyPerez, prompted ChatGPT to “prepare legal memorandumcountering government sovereignty claims.” (See, e.g., Obj.46 n.28.) ChatGPT generated a non-case-specific legalmemorandum in response, much of which is included inPlaintiff's Objections verbatim. (See Obj. 46–47.)Although I am unaware of any applicable federal or localrules prohibiting the use of AI during the course of litigation,see Gordon v. Wells Fargo Bank N.A. Inc., No. 24-CV-388,2025 WL 1057211, at *3 (M.D. Ga. Apr. 8, 2025); Nelsonv. Wash. Bd. of Indus. Appeals, No. 25-CV-5551, 2025WL 1772085, at *1 (W.D. Wash. June 26, 2025), and myIndividual Rules do not address the use of AI, litigants,including pro se parties, must adhere to their obligationsunder Rule 11(b) of the Federal Rules of Civil Procedure.Rule 11(b) states, in part, that “[b]y presenting to thecourt a pleading, written motion, or other paper ... [an]unrepresented party certifies that to the best of the person'sknowledge, information, and belief, formed after an inquiryreasonable under the circumstances ... the claims, defenses,and other legal contentions are warranted by existing lawor by a nonfrivolous argument for extending, modifying,or reversing existing law or for establishing new law;[and] the factual contentions have evidentiary support or, ifspecifically so identified, will likely have evidentiary supportafter a reasonable opportunity for further investigation ordiscovery.” At the bare minimum, this obligation requireslitigants to carefully review every statement and citationdrafted by AI to ensure that it is legally and factually correct,particularly given that AI tools make it much easier for prose litigants to submit “voluminous” briefing. See Thornock v.Corp. of the Presiding Bishop of the Church of Jesus Christof Latter-Day Saints, No. 25-CV-56, 2025 WL 1900314, at*4 n.5 (E.D. Va. July 9, 2025).*4 Here, Plaintiff failed to meet his obligations under Rule11. At least two citations in Plaintiff's objections appear tobe “hallucinated,” a term used for citations produced byAI “that conform to the Bluebook, but ultimately are notreal.” Benjamin v. Costco Wholesale Corp., 779 F. Supp. 3d341, 342 (E.D.N.Y. 2025); see also Legal ChatGPT: Tips,Prompts, and Use Cases, American Bar Association (Mar. 21,2025), https://www.americanbar.org/groups/law_practice/resources/law-technology-today/2025/legal-chatgpt-tips-prompts-and-use-cases/ (“AI-powered chatbots are proneto hallucinations, have trouble understanding contextualnuances of the law, and have trained-in biases.”). Since theadvent of generative AI, hallucinated cases have become adisturbing problem in legal filings, and the “epidemic ofciting fake cases has continued unabated.” Benjamin, 779 F.Supp. 3d at 343; see also Hall v. Acad. Charter Sch., No. 24-CV-08630, 2025 WL 2256653, at *4 (E.D.N.Y. Aug. 7, 2025)(“Regrettably, the number and regularity with which courtshave been faced with hallucinations in court filings continuesto rise both in this country and abroad.”); Pegnatori v. PureSports Techs. LLC, No. 23-CV-01424, 2023 WL 6626159, at*5 n.5 (D.S.C. Oct. 11, 2023) (“[T]hus far ChatGPT's battingaverage in legal briefs leaves something to be desired.”). Notonly do citations to hallucinated cases run afoul of a litigant'sobligation to verify that legal contentions are “warranted by
ERIC ANDREW PEREZ, Plaintiff, v. DR. NEIL C. EVANS, et al.,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4existing law” under Rule 11(b), fake citations are also aprofound waste of the opposing party's time, as well as theCourt's time. As one court put it:When used carelessly, [AI] producesfrustratingly realistic legal fiction thattakes inordinately longer to respondto than to create. While one partycan create a fake legal brief atthe click of a button, the opposingparty and court must parse throughthe case names, citations, and pointsof law to determine which parts,if any, are true. As AI continuesto proliferate, this creation-responseimbalance places significant strain onthe judicial system.Ferris v. Amazon.com Servs., LLC, 778 F. Supp. 3d 879, 880–81 (N.D. Miss. 2025).Here, Plaintiff's argument that service of process onDefendant Mark Mulligan was substantially compliantutilizes the quotation “[w]hen there is actual notice, everytechnical violation of the rule or failure of strict compliancemay not invalidate the service of process.” (Obj. 28.) Plaintiffattributes that quotation to Concepcion v. City of New York,No. 05 Civ. 8501 (RJS), 2008 WL 5395720, at *4 (S.D.N.Y.Dec. 17, 2008). (Id.) This citation appears real becauseConcepcion v. City of New York, No. 05 Civ. 8501 (RJS), is areal case. However, there is no December 17, 2008 decision inConcepcion, nor is there any opinion in the Southern Districtof New York that corresponds to 2008 WL 5395720. Instead,through research I was able to find the quoted language inArmco, Inc. v. Penrod-Stauffer Building Systems, Inc., 733F.2d 1087, 1089 (4th Cir. 1984). In Armco, immediately afterstating that not every technical violation invalidates servicewhere there is actual notice, the Fourth Circuit stated “[b]utthe rules are there to be followed, and plain requirementsfor the means of effecting service of process may not beignored.” Id. The Armco court held that service of processwas not valid and remanded the case to the district court withinstructions to vacate the default judgment entered against thedefendant as void on that basis. Id. at 1089–90. Accordingly,Plaintiff's version of the Armco quotation is not only falselyattributed to a hallucinated case, but it leaves out crucialcontext undermining Plaintiff's legal argument.Similarly, in the PREP Act portion of Plaintiff's objections,(Obj. 38–45), Plaintiff cites United States v. Peterson, No.3:17-cr-00065 (D. Conn. 2018), and states that “[i]n this case,the court found that deception about the officers’ identity andintent undermined the validity of the consent given.” (Obj.41.) The case corresponding to No. 3:17-cr-00065 in theDistrict of Connecticut is actually United States v. Cook, etal., and there is no defendant in that case by the name ofPeterson or any language in that case that support Plaintiff'sstatement. I suspect that Defendant's hallucinated citation isa scrambled version of United States v. Peterson, No. 3:18-CR-00049, 2018 WL 6061571 (D. Conn. Nov. 20, 2018), acase which discusses the issue of law enforcement officersmaking misrepresentations to a criminal defendant. However,the holding of Peterson is the opposite of what Defendantclaims. The Peterson court found that while police began theirinterview with the defendant in a “somewhat misleading”manner, the defendant nonetheless “voluntarily consentedto the officers entering into and remaining in his home”given the totality of the circumstances. Id. at *6–7. Useof these “hallucinations” are a violation of Rule 11(b) anda tremendous waste of my time and the parties’ time.2Nonetheless, I decline to impose sanctions on Plaintiff for hisviolation of Rule 11(b), in part due to Plaintiff's admissionto using ChatGPT. Setting aside for the moment the AI-related issues with Plaintiff's submission, the majority ofthe objections do not warrant my consideration under thelaw. Indeed, for the reasons stated below, I would overrulePlaintiff's objections without the identified AI issues.*5 Plaintiff attempts to relitigate nearly every aspect ofthe motions to dismiss that were before Magistrate JudgeNetburn and which were analyzed and addressed in theReport. In addition, Plaintiff introduces many new factualcontentions and lines of argument. It is well-settled that whenthe objecting party “simply reiterates the original arguments,”the court will review the report only for clear error. See Jones,2012 WL 1592190, at *1 (collecting cases). It is equally wellsettled that “new arguments and factual assertions cannotproperly be raised for the first time in objections to thereport and recommendation, and indeed may not be deemedobjections at all.” Piligian v. Icahn Sch. of Med. at MountSinai, 490 F. Supp. 3d 707, 716 (S.D.N.Y. 2020) (internalquotation marks omitted); Advanced Access Content Sys.Licensing Adm'r, LLC v. Shen, No. 14-CV-1112, 2023 WL4348030, at *2 (S.D.N.Y. July 5, 2023) (same). As most ofPlaintiff's objections seek to rehash arguments considered byMagistrate Judge Netburn or to introduce new allegations and
ERIC ANDREW PEREZ, Plaintiff, v. DR. NEIL C. EVANS, et al.,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.5arguments, I need not and will not consider these objectionson an individual basis. (See, e.g., Obj. 71 (rehashing argumentthat Plaintiff asserts a colorable claim under the ComputerFraud and Abuse Act because he alleges unauthorizedaccess to his electronic health records, a claim which theReport comprehensively examined and rejected (see Reportat 17–20)); Obj. 35 (introducing new and unsubstantiatedallegations that Dr. Mulligan's defense counsel is colludingwith the FBI and Buffalo law enforcement to run a “coerciveharassment system” against Plaintiff)). See also Morris, 167F. App'x at 232 (“The district court need not ... specificallyarticulate its reasons for rejecting a party's objections or foradopting a magistrate judge's report and recommendationin its entirety.”). Nonetheless, I address a few objectionsindividually below.At the beginning of Plaintiff's lengthy objections, he assertsthat “[t]he R&R fundamentally misconstrues the factual basisand applicable law in this case” and “adopts the Defendants’arguments wholesale without construing the pro se Plaintiff'sclaims liberally.” (Obj. 1–2.) On this basis, he “objectsto the R&R in full.” (Id. at 2.) A “conclusory or generalobjection[ ]” will not be considered by a court. See Jones,2012 WL 1592190, at *1 (collecting cases). Thus, Plaintiff'soverarching conclusory and general objection to the Reportdoes not warrant consideration. However, even if I were toconsider this objection, Plaintiff's claim that the Report failsto construe his claims liberally is simply not true. The Reportrepeatedly makes clear not only that Plaintiff's argumentswere considered in their entirety but also that the argumentswere construed liberally. (See, e.g., Report at 18 (“The Courtconstrues Plaintiff's pleadings liberally to assert a claim under18 U.S.C. § 1030(g).”); see also Report at 22, 24, 26.) TheReport is replete with citations to the record, as well as to caselaw addressing the legal standard for each of Plaintiff's claims,most of which Plaintiff does not address in his objections.Plaintiff's objection to the Report on the basis that it failed toconstrue his pleadings liberally is OVERRULED.Next, Plaintiff objects to the Report's finding that the actioncan be dismissed in its entirety as to Dr. Mark Mulliganfor insufficient service of process. (Obj. 28–35.) Plaintiffargues that “(1) Dr. Mulligan received actual notice; (2)Plaintiff made multiple good-faith efforts to serve him; and(3) Defense counsel refused to waive service.” (Id. at 28.)Notably, these are all arguments for why Plaintiff's failure toserve Mulligan should be excused. In other words, Plaintiffdoes not contest that he failed to properly serve Mulligan.Plaintiff's arguments fail. First, “actual notice of suit [cannot]cure a failure to comply with the statutory requirements forserving process.” Sartor v. Toussaint, 70 F. App'x 11, 13(2d Cir. 2002) (summary order); see also United States v.Thompson, 921 F.3d 82, 87 (2d Cir. 2019) (“Actual notice ofthe suit does not cure defective service” (alterations adoptedand internal quotation marks omitted)). Second, althoughPlaintiff did attempt to serve Mulligan, he did not show“good cause” for his failure to properly serve him. SeeFed. R. Civ. P. 4(m). To the contrary, the Report describeshow, on various occasions, “Plaintiff was instructed by bothopposing counsel and the Court how to properly effectuateservice,” and still failed to do so. (Report at 7–8.) Third,it is true that an individual such as Mulligan “has a dutyto avoid unnecessary expenses of serving the summons”when a plaintiff requests a waiver of service and complieswith the procedural requirements of Rule 4(d) in doing so.However, Perez has not shown that he triggered Mulligan'sduty to waive service by submitting a request to waiveservice in writing with the information required by Rule 4(d).Furthermore, the only case law Plaintiff cites in support ofhis argument that his failure to serve Mulligan should beexcused is Concepcion v. City of New York, No. 05 Civ.8501 (RJS), 2008 WL 5395720, at *4 (S.D.N.Y. Dec. 17,2008), a hallucinated case that does not contain the quotedlanguage Plaintiff attributes to it. In any event, the Report alsoanalyzes Plaintiff's claims against Mulligan on the merits andfinds dismissal warranted under Rule 12(b)(6), stating that“Plaintiff should not be granted leave to serve Dr. Mulliganbecause the claims against him are without merit.” (Reportat 13.) Thus, even if Plaintiff had properly served Mulliganor were to properly serve Mulligan in the future, it wouldnot resurrect the claims against him. Plaintiff's objectionregarding his failure to serve Mulligan is OVERRULED.*6 Plaintiff also objects to the Report's dismissal of allclaims brought under the PREP Act for lack of subject matterjurisdiction. Plaintiff argues that jurisdiction is proper underthe willful misconduct exception to the PREP Act, and thatthe willful misconduct standard was satisfied. (Obj. 38, 45.)Even if this were true, this would not save Plaintiff's claims.The PREP Act provides immunity from suit for the UnitedStates and manufacturers, distributors, program planners,and other qualified persons who prescribed, administered,or dispensed a qualified countermeasure, such as variousCOVID-19 vaccines. See 42 U.S.C. § 247d-6d. Plaintiffis correct that there is an exception to this immunity for“death or serious physical injury proximately caused bywillful misconduct.” 42 U.S.C. § 247d-6d(d)(1). However,
ERIC ANDREW PEREZ, Plaintiff, v. DR. NEIL C. EVANS, et al.,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.6the PREP Act is clear that any suit brought pursuant to thewillful-misconduct exception to immunity “shall be filed andmaintained only in the United States District Court for theDistrict of Columbia.” 42 U.S.C. § 247d-6d(e)(1); see alsoPalma v. Cabrini of Westchester, No. 22-CV-5430, 2022 WL4240823, at *4 (S.D.N.Y. Aug. 15, 2022) (“[E]ven if plaintiffalleged willful misconduct PREP Act claims, the U.S. DistrictCourt for the District of Columbia is the exclusive forum forsuch claims.”). Therefore, even assuming Plaintiff alleges aviable claim for willful misconduct under the PREP Act, theReport correctly notes that I lack subject-matter jurisdictionover all PREP Act claims and must dismiss any such claimsunder Rule 12(b)(1). Plaintiff's objection regarding the PREPAct is OVERRULED.Plaintiff objects to the Report's recommendation that hisRacketeer Influenced & Corrupt Organizations Act (“RICO”)claim against the AstraZeneca Defendants and Mulliganshould be dismissed for failure to state a claim. Plaintiff statesthat his “RICO claims were plausibly alleged,” (Obj. 60),and that “Plaintiff alleges a coordinated scheme involvingmultiple predicate acts including document falsification,fraud, and data manipulation,” (id. at 64). These objectionsare conclusory, and I decline to consider them. See Jones,2012 WL 1592190, at *1.Plaintiff also asserts new factual allegations regarding analleged RICO conspiracy. For instance, Plaintiff states:Plaintiff states that Astra Zenecaoperates like a criminal enterprise.First, they analyzed The market athand and the laws which essentiallystated that they could sell poison tothe world and face no consequences.Second, they had to enlist key playersin the United States government toenforce their scheme which includeand is not limited to coercion,targeting, Courts, and PRISM onvarious targets. Third, emplacea network cyber war specialistwithin the agencies that wouldperform various data replications, datamodifications, and deletions withinvarious agency databases.... In thiscase AG Damian Williams colludedand joined forces with the MiddleDistrict of Florida, Pasco CountySheriff's Office to coerce and controlplaintiff EAP. Mr. Williams putmaximum effort into the coercionand control of plaintiff EAP througha covert network of confidentialinformants, con men, network ofFlorida & NY Correctional Officers& Cadre, Religious organizations,realtors, law enforcement ownedconstruction companies, and homebuilders. Plaintiff states that the SDNYled by Mr. Williams targeted plaintiffby using the construction supervisorof his present neighborhood andthe home builder DR Horton toengineer purchases for collaborators,cooperators, and law enforcementactive and retired that are kin to andentered partnerships with Army CIDand Sandusky.(Obj. 60–61.) I need not consider these allegations because“new arguments and factual assertions cannot properlybe raised for the first time in objections to the reportand recommendation.” WFCM 2016-LC25 W. Bay AreaBoulevard, LLC v. Tyler, No. 21-CV-8865, 2025 WL2424353, at *1 (S.D.N.Y. Aug. 22, 2025) (quoting Garciav. Lamanna, No. 18-CV-5454, 2022 WL 3445433, at *1(S.D.N.Y. Aug. 17, 2022)).Even if I were to consider these statements, Plaintiff'snew allegations amount to “vague assertions of fraud andconspiracy” insufficient to make out a civil RICO claim.(Report at 16.) Among other things, to allege a civil RICOclaim Plaintiff must show the existence of an enterprise,defined as “ ‘a group of persons associated together for acommon purpose of engaging in a course of conduct,’ theexistence of which is proven ‘by evidence of an ongoingorganization, formal or informal, and by evidence that thevarious associates function as a continuing unit.’ ” FirstCap. Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 173(2d Cir. 2004) (quoting United States v. Turkette, 452 U.S.576, 583 (1981). “Plaintiff[’s] conclusory naming of a stringof entities does not adequately allege an enterprise.” Id. at175 (internal quotation marks omitted); see also id. at 174(finding that Plaintiffs failed to allege an enterprise wherethey “failed to provide ... any solid information regarding
ERIC ANDREW PEREZ, Plaintiff, v. DR. NEIL C. EVANS, et al.,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.7the hierarchy, organization, and activities of this allegedassociation-in-fact enterprise, from which we could fairlyconclude that its members functioned as a unit” (internalquotation marks omitted)). In addition, Plaintiff does notallege a “clear and definite” injury to business or property,as he must to make out a civil RICO claim. See Denney v.Deutsche Bank AG, 443 F.3d 253, 266 (2d Cir. 2006). Instead,Plaintiff alleges physical and emotional injury, (see, e.g., Obj.79 (“Plaintiff has experienced severe neurological symptoms,including paresthesia, muscle dysfunction, and autonomicdysregulation”)), which are not cognizable forms of injuryunder RICO. See Williams v. Dow Chem. Co., 255 F. Supp.2d 219, 225 (S.D.N.Y. 2003) (“RICO provides recovery forinjury to business and property; it does not provide recoveryfor physical and emotional injuries.”); see also Laborers Loc.17 Health & Benefit Fund v. Philip Morris, Inc., 191 F.3d229, 241 (2d Cir. 1999) (noting “the lack of a RICO damagesremedy for even direct personal injuries”). Thus, Plaintiff'sobjection regarding his RICO claim is OVERRULED.*7 Finally, Plaintiff objects to the Report's recommendationthat Plaintiff should not be granted leave to amend, stating“[p]ro se plaintiffs should be granted at least one opportunityto amend absent futility.” (Obj. 80.) This is a correct statementof the law. The Report acknowledges this, stating that“[g]enerally, a pro se litigant should be granted leave to amendto cure any deficiencies in a complaint.” (Report at 24.)However, as Plaintiff acknowledges, leave to amend need notbe granted when amendment would be futile. See Kallas v.Fiala, 591 F. App'x 30, 31 (2d Cir. 2015) (summary order).Here, the Report correctly found that amendment wouldbe futile because “Plaintiff cannot allege new facts to curethe deficiencies in his pleadings.” (Report at 24.) Plaintiff'sobjections do not explain what additional facts he wouldallege to salvage his claims, describe proposed amendmentsto his complaint, or assert in what way the Report's findingof futility is incorrect.3 Furthermore, as the Report notes,this is Plaintiff's fourth lawsuit bringing claims to redress theharm he believes he suffered through his participation in theclinical trial of AstraZeneca's COVID-19 vaccine, and eachlawsuit has failed “because of both substantive and proceduraldefects,” (Report at 26). See Perez v. Oxford Univ., No. 21-CV-4844, 2022 WL 1468438 (S.D.N.Y. May 10, 2022); Perezv. Oxford Univ., No. 22-CV-1560 (D.D.C. Sept. 23, 2022);Perez v. Oxford Univ., No. 22-CV-7830, 2022 WL 15523951(S.D.N.Y. Oct. 24, 2022). There is no reason to believe thatPlaintiff can remedy the substantive and jurisdictional defectsidentified by the Report. Plaintiff's objection to the Report'srecommendation to deny leave to amend is OVERRULED.Having overruled Plaintiff's objections, I review theremainder of the Report for clear error. See Wilds v. UnitedParcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y.2003). Finding no error, let alone clear error, I herebyADOPT the entirety of the Report and DISMISS Plaintiff'sAmended Complaint in its entirety without leave to amend.Accordingly, Plaintiff's motions for preservation of evidenceare hereby DENIED AS MOOT.V. Temporary Restraining OrderPlaintiff also moves for a temporary restraining orderprohibiting the VA from accessing, modifying, ordisseminating Plaintiff's mental health records or relyingupon or referencing a fabricated diagnosis in any pending orfuture administrative or medical proceedings. (Doc. 141 at11–12.) To obtain a temporary restraining order, the movantmust show, among other things, either a likelihood of successon the merits of his underlying claims or sufficiently seriousquestions going to the merits to make them a fair ground forlitigation. See Spencer Trask Software & Info. Servs., LLC v.RPost Int'l Ltd., 190 F. Supp. 2d 577, 580 (S.D.N.Y. 2002)(citing Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d70, 72 (2d Cir. 1979)). As all of Plaintiff's claims are subjectto dismissal, Plaintiff cannot make that showing here. J Braggv. Jordan, 669 F. Supp. 3d 257, 267 (S.D.N.Y. 2023) (“Wherea party seeking a temporary restraining order fails to establisha likelihood of success on the merits, ‘there is no need toaddress the other prongs of the analysis.’ ” (quoting OneidaNation of N.Y. v. Cuomo, 645 F.3d 154, 164 (2d Cir. 2011)));Jones v. Healthfirst, No. 18-CV-6834, 2018 WL 6706313,at *3 (E.D.N.Y. Dec. 19, 2018) (“Given the dismissal of theComplaint, there is no likelihood of success on the merits of[pro se] Plaintiff's claims and therefore [the motion] seekinginjunctive relief is DENIED.”). Therefore, Plaintiff's motionfor a temporary restraining order is DENIED.VI. ConclusionFor the foregoing reasons, Magistrate Judge Netburn's Reportand Recommendation is ADOPTED in full. The Clerk ofCourt is respectfully directed to terminate Docs. 99, 101, 103,141, 144, and 145, dismiss this action with prejudice, andclose the case.*8 The Court certifies under 28 U.S.C. § 1915(a)(3) thatany appeal from this Opinion & Order would not be taken ingood faith and, therefore, in forma pauperis status is deniedfor purposes of an appeal. See Coppedge v. United States, 369
ERIC ANDREW PEREZ, Plaintiff, v. DR. NEIL C. EVANS, et al.,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.8U.S. 438, 444–45 (1962) (holding that appellant demonstratesgood faith when seeking review of a non-frivolous issue).SO ORDERED.All CitationsSlip Copy, 2025 WL 2726792Footnotes1ChatGPT is a generative artificial intelligence (“AI”) tool.2It is possible that Plaintiff's brief contains other “hallucinated” citations. Due to its substantial length and thefact that I find the objections without merit, I have not expended the time to verify each citation in the brief.3I liberally construe Plaintiff's objection stating that there is no waiver of sovereign immunity for claims broughtunder the Federal Tort Claims Act (“FTCA”) and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971),(see Obj. 46–47), as a motion for leave to amend, as Plaintiff did not bring any claims under the FTCA orBivens in his Amended Complaint. As Plaintiff does not indicate what specific facts he would allege to makeout a FTCA or Bivens claim, leave to amend to add such claims is DENIED.End of Document© 2025 Thomson Reuters. No claim to original U.S. Government Works.
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