Perfetto v. The City of New York et al

Filing 14

ORDER granting 6 Motion to Dismiss for Failure to State a Claim. Ordered by Judge I. Leo Glasser on 2/11/2015. (Russell, Alexandra)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RALPH PERFETTO,
MEMORANDUM AND ORDER
Plaintiff,
14 Civ. 2682 (ILG) (RML)
- against CITY OF NEW YORK, ET AL.,
Defendants.
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GLASSER, Senior United States District Judge:
Plaintiff Ralph Perfetto (“Perfetto”) brings this action against the City of New
York (“City”); former Kings County District Attorney Charles J. Hynes (“Hynes”), former
Kings County Deputy District Attorney Dino Amoroso (“Amoroso”), Kings County
Assistant District Attorney Joel Greenwald (“Greenwald”), former Richmond County
Assistant District Attorney Om Kakani, and Detective Annemarie Murphy (“Murphy”),1
individually and as employees of the Kings County and Richmond County District
Attorney’s Offices (“Individual Defendants,” and together with the City, “Defendants”),
alleging that Defendants conspired to selectively prosecute him for the unauthorized
practice of law, which violated 42 U.S.C. §§ 1983 and 1985. Pursuant to Federal Rule of
Civil Procedure 12(b)(6), Defendants move to dismiss the Complaint. Dkt No. 6. For
the following reasons, the motion is GRANTED.
BACKGROUND
The following facts are taken from the Complaint, which is presumed true for
purposes of the motion, as well as from documents of which the Court may take judicial
notice. Perfetto served as a Democratic Party official and an elected member of the

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Formerly known as “Perrino.”

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Democratic State Committee from 1992 through 2010. See Compl. ¶ 11. Hynes was the
Kings County District Attorney during all times relevant to the Complaint. Id. Perfetto
worked on Hynes’ 2001 and 2005 re-election campaigns for District Attorney, as well as
his campaigns for New York Governor and Attorney General. Id. ¶ 12.
Perfetto alleges that Hynes used “his political power and prosecutorial authority
to systematically crush political opponents” and “targeted” individuals whom he
believed to be “threats to [his] domination of the Brooklyn Democratic Party and his
position of District Attorney.” Id. ¶¶ 10, 27-28, 30(a). He alleges that in September
2005, he became such a “target” when he challenged Vito Lopez—the candidate who
Hynes openly supported—in an election for Democratic County Leader. Id. ¶ 14. He
lost the election to Lopez. Id.
I.

Conviction for the Unauthorized Practice of Law
On August 21, 2008, nearly three years after losing the election for Democratic

County Leader, Perfetto appeared before the Brooklyn Criminal Court on behalf of his
cousin’s son, Anthony Martire, a defendant in a “minor criminal matter.” Id. ¶ 15.2 He
also faxed statements regarding two witnesses to the Assistant District Attorney on the
case. Id.
In April 2009, Detective Murphy contacted Perfetto in response to a complaint
regarding his August 2008 appearance as an attorney in Brooklyn Criminal Court
without a license.3 Id. ¶ 16. Perfetto “immediately” responded and “explained the
situation.” Id. ¶ 17. In April 2010, the Kings County District Attorney’s Office filed a

Perfetto states in his Opposition that he is not a lawyer. See Opp. at 14.
The Complaint does not identify the source of the initial complaint that Murphy received in April 2009.
Perfetto states in his Opposition that “charges were brought after an A.D.A. ‘observed’ the Plaintiff
engaging in the unauthorized practice of law.” Opp. at 31.

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criminal complaint against him, which charged him with the unauthorized practice of
law, a misdemeanor, in violation of New York law. Id. ¶ 18. He was arrested on June 1,
2010, and on May 26, 2011, a jury found him guilty of the charge and the Brooklyn
Criminal Court imposed a $1,000 fine, which he paid. Id. ¶¶ 18-19; Kings County Cert.
of Disposition (DX B). He did not appeal the conviction. Id. ¶ 20.
II.

Alleged Conspiracy Against Perfetto
Days after his arrest in June 2010, Perfetto launched his re-election campaign for

District Leader of the Brooklyn Democratic Party. Id. ¶ 21. He ran against Kevin
Carroll, the candidate who Hynes openly supported. Id. ¶ 22. He alleges that Hynes,
Amoroso, and Greenwald “carefully orchestrated” his arrest and criminal prosecution
“to embarrass and deny [him] from being reelected to his position of leadership in the
Democratic party.” Id. ¶ 21. After his arrest, Carroll allegedly “sent out campaign
material smearing [his] name.” Id. ¶ 22. He lost the election to Carroll. Id. ¶ 23.
Perfetto commenced this action on April 29, 2014. Dkt. No. 1. The Complaint
does not identify specific causes of action, and makes only a general statement that
Defendants “violated Plaintiff’s rights as guaranteed by reason of the Fourteenth
Amendment to the United States Constitution, 42 U.S.C. §§ 1983, 1985.” See Compl. ¶
36. The Court construes the Complaint as alleging federal claims under 42 U.S.C. §§
1983 and 1985 for civil conspiracy, selective prosecution, and municipal liability. On
August 12, 2014, Defendants moved to dismiss the Complaint. Dkt. No. 6. (“D. Mem.”).
Perfetto filed his Opposition (“Opp.”) on September 26, 2014. Dkt. No. 12. Defendants
filed their reply (“Reply”) on October 17, 2014. Dkt. No. 13.
LEGAL STANDARD
I.

Rule 12(b)(6)
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To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
the Complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although detailed
factual allegations are not necessary, mere legal conclusions, “a formulaic recitation of
the elements of a cause of action,” or “naked assertions” by the plaintiff will not suffice.
Id. (internal quotations and citations omitted). This Court must accept as true all of the
allegations made in the complaint and draw all reasonable inferences in the plaintiff’s
favor. Matson v. Bd. of Educ. of the City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir.
2011).4
DISCUSSION
Defendants argue that the Complaint should be dismissed because (1) the
Individual Defendants are entitled to immunity from suit in their official and individual
capacities and (2) Perfetto has failed to allege sufficiently the elements of his claims.5
I.

Claims Against Murphy and Kakani
The Complaint mentions Murphy only once regarding her investigation of

Perfetto’s appearance in Brooklyn Criminal Court and does not allege her involvement
in the purported conspiracy against Perfetto. Similarly, the Complaint contains no
allegations whatsoever regarding Kakani’s misconduct, and Defendants assert that he

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 Perfetto incorrectly relies upon the less stringent pleading standard set forth in Conley v. Gibson, 355
U.S. 41 (1957), which is no longer good law. See Twombly, 550 U.S. at 570.

5 In his Opposition, Perfetto added several new claims that were not alleged in his Complaint: abuse of
process, prima facie tort, and municipal liability based on a “failure-to-train” theory. It “is axiomatic that
the Complaint cannot be amended by the briefs in opposition to a motion to dismiss.” O’Brien v. Nat’l
Prop. Analysts Partners, 719 F. Supp. 222, 229 (S.D.N.Y. 1989). Thus, the Court will not consider these
additional claims in ruling on Defendants’ motion.

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has not been served with process. Thus, the Complaint is dismissed as to Murphy and
Kakani. See Grullon v. City of New Haven, 720 F.3d 133, 138-39 (2d Cir. 2013).
II.

Immunity
a. Individual Defendants Sued in their Official Capacities
Official-capacity suits “represent only another way of pleading an action against

an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165-66
(1985) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). Where
the plaintiff sues both the municipality and a municipal official in his official capacity,
courts consistently dismiss the official capacity claim as “duplicative” of the claim
against the municipality. See, e.g., Thomas v. Venditto, 925 F. Supp. 2d 352, 364
(E.D.N.Y. 2013). Because Perfetto has also sued the City, his claims against the
Individual Defendants in their official capacities are dismissed as duplicative.6
b. Absolute Prosecutorial Immunity
Defendants argue that Hynes, Amoroso, and Greenwald are entitled to absolute
prosecutorial immunity for claims brought against them in their individual capacities.
See D. Mem. at 6. Perfetto contends that they are not entitled to absolute prosecutorial
immunity because they were acting in an investigative, rather than prosecutorial
capacity when they charged and prosecuted him for the unauthorized practice of law.
See Opp. at 10-11.
Prosecutors are entitled to absolute immunity from suit when discharging their
official duties, but are entitled to qualified immunity only for liability related to actions
not “intimately associated with the judicial phase of the criminal process.” See, e.g.,

6 Defendants argue that sovereign immunity shields the Individual Defendants from suit in their official
capacities. Because the Court has dismissed the official capacity claims for the reasons noted above, it
need not address Defendants’ sovereign immunity argument.

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Schumeli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005). The exercise of
prosecutorial discretion in determining whether to pursue criminal charges falls within
the realm of immunized prosecutorial activity. See Day v. Morgenthau, 909 F.2d 75, 77
(2d Cir. 1990). Moreover, a prosecutor’s motivation is irrelevant to an absolute
immunity analysis so long as his acts were reasonably within the prosecutorial function.
Parkinson v. Cozzolino, 238 F.3d 145, 150 (2d Cir. 2001).
Hynes, Amoroso, and Greenwald are entitled to absolute prosecutorial immunity
against Perfetto’s claims, which arise entirely out of their decision to initiate and pursue
the criminal prosecution against him. See, e.g., Morgenthau, 909 F.2d at 77.
Furthermore, allegations that they “orchestrated” Perfetto’s arrest to “embarrass and
deny [him] from being reelected to his position of leadership in the Democratic party,”
are assertions of improper motive, which are irrelevant to an absolute immunity
analysis. See Parkinson, 238 F.3d at 150. The claims against Hynes, Greenwald, and
Amoroso in their individual capacities are therefore dismissed on absolute immunity
grounds.
III.

Municipal Liability

Perfetto argues that the City should be liable for the alleged constitutional
violations because its employee, Hynes, “abus[ed] lawful process to gain political
advantage by bringing charges against political opponents, to time the charges to
produce maximum political advantage, all in an attempt to retain power in Brooklyn.”
See Opp. at 27. A municipal entity may be found liable under Sections 1983 and 1985
“only where the municipality itself causes the constitutional violation at issue.” See
Monell, 436 U.S. at 691; Owens v. Haas, 601 F.2d 1242, 1247 (2d Cir. 1979). The City
cannot be held liable on a respondeat superior theory; instead, Perfetto must allege that
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Hynes implemented or executed the unlawful action pursuant to a governmental policy
or custom. See City of St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988).
Perfetto premises his municipal liability theory on the alleged fact that Hynes
used “his political power and prosecutorial authority to systematically crush political
opponents.” See Compl. ¶ 10. He does not allege that these actions were pursuant to
any official City custom or policy. Therefore, he has failed to demonstrate that the City
“was the ‘moving force’ behind the alleged injury,” and the municipal liability claim
against it is dismissed. See Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008).
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED. The
Court is mercifully restrained from invoking 28 U.S.C. § 1927 for bringing this frivolous,
meritless lawsuit which, in essence, is a complaint for being caught and prosecuted for
practicing law without a license. The Clerk of Court is instructed to enter judgment in
favor of Defendants and close the case.
SO ORDERED.
Dated:

Brooklyn, New York
February 11, 2015

/s/
I. Leo Glasser
Senior United States District Judge

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