Leibovitz v. The City of New York et al

Filing 4

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. For the reasons set forth in the enclosed Order, all claims against the City of New York, Queens County Civil Court Clerk Maureen Giddens, Queens County District Attorney Richard Bro wn, Deputy Bureau Chief Floyd Herring, Supervisory Assistant District Attorney Kevin Fogarty and Assistant District Attorney Taylor Piscionere are dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). No summonses shall issue as to th ese defendants. The Clerk of Court is directed to amend the caption and docket to reflect the dismissal of these defendants. Plaintiff's claims shall proceed against Deputy Clerk John Barry, Major Lowe, Court Officer Marie Bennett, Lieutenant O'Brien, Court Officers John Doe Shield #6814, John Doe Shield #3814, John Doe Shield #7910, John Doe Shield #687 and John Does #1-16. The United States Marshals Service is directed to serve the summons, complaint, and this order upon the remain ing defendants without prepayment of fees. A courtesy copy of the same papers shall be mailed to the Attorney General for the State of New York. All pretrial matters are referred to Magistrate Judge Lois Bloom. The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal.Ordered by Judge Kiyo A. Matsumoto on 6/30/2015. (Alagesan, Deepa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
ETAN LEIBOVITZ,
MEMORANDUM & ORDER

Plaintiff,
- against –

15-CV-1722 (KAM)

THE CITY OF NEW YORK, a Municipal
Entity; QUEENS COUNTY DISTRICT
ATTORNEY RICHARD BROWN; DEPUTY BUREAU
CHIEF FLOYD HERRING; SUPERVISORY
ASSISTANT DISTRICT ATTORNEY KEVIN
FOGARTY; ASSISTANT DISTRICT ATTORNEY
TAYLOR PISCIONERE; CLERK OF THE
COUNTY QUEENS CIVIL COURT MAUREEN
GIDDENS; DEPUTY CLERK JOHN BARRY;
MAJOR LOWE; LIEUTENANT O'BRIEN;
COURT OFFICERS MARIE BENNETT; JOHN
DOE SHIELD #6814; JOHN DOE SHIELD
#3814; JOHN DOE SHIELD #7910; JOHN
DOE SHIELD #687; JOHN DOES #1-16,
Defendants.
----------------------------------X
MATSUMOTO, United States District Judge:
Plaintiff Etan Leibovitz, brings this pro se civil
rights action pursuant to 42 U.S.C. § 1983 and New York state
law for, inter alia, false arrest, failure to intervene,
malicious prosecution, and violation of his First Amendment
rights.

(See ECF No. 1, Complaint dated 3/30/15.)

Plaintiff’s

request to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915 is granted.

For the reasons discussed below, plaintiff’s

claims against the City of New York, Clerk of the Queens County
Civil Court Maureen Giddens (“Giddens”), Queens County District
Attorney Richard Brown (“Brown”), Deputy Bureau Chief Floyd
1

Herring (“Herring”), Supervisory Assistant District Attorney
Kevin Fogarty (“Fogarty”), and Assistant District Attorney
Taylor Piscionere (“Piscionere”) are dismissed.

Plaintiff’s

claims against Deputy Clerk John Barry (“Barry”), Major Lowe
(“Lowe”), Court Officer Marie Bennett (“Bennett”), Lieutenant
O'Brien (“O’Brien”), Court Officers John Doe Shield #6814, John
Doe Shield #3814, John Doe Shield #7910, John Doe Shield #687,
and John Does #1-16 (“John Doe Officers”) shall proceed.
BACKGROUND
As alleged in the complaint, on April 16, 2014,
plaintiff Etan Leibovitz was arrested inside the Queens County
Civil Court for, inter alia, video-recording court officers with
a smartphone recording device after being told that recording
was not allowed.

(Compl. at 13-20.)

At the time of his arrest,

plaintiff was at the Queens Civil Court to observe a hearing
involving his friend, Kenneth Ward, Jr.

(“Ward”).

(Id. at 13.)

While at the hearing, plaintiff and Ward were directed by
Bennett to allow the female respondent in Ward’s case to leave
the courtroom before they exited.

(Id. at 14.)

Plaintiff

verbally objected to Bennett’s direction because he felt that it
constituted gender-based discrimination.

(Id.)

Plaintiff was

permitted to leave the courtroom several minutes later and was
followed by Bennett on his walk toward the elevators.

(Id.)

After exiting the courtroom, plaintiff began to feel anxious and

2

advised Bennett that he was going to record her with his
smartphone in order to “protect Mr. Ward and himself.”

(Id.)

Bennett subsequently called for assistance from other court
officers, and O’Brien and the John Doe Officers responded to the
elevators.

(Id. at 15.)

Plaintiff was still recording the

scene using his smartphone.

(Id.)

Bennett and O’Brien directed

plaintiff to go downstairs to the third floor.

(Id.)

Plaintiff

refused to leave the area, where other witnesses were present.
(Id.)

Bennett then told plaintiff that he could not “record in

court.”

(Id.)

Plaintiff objected to this direction, asked

Bennett and other defendants to provide authority for her
statement that plaintiff could not record inside the courthouse,
and indicated verbally that he intended to record Bennett,
O’Brien and the John Doe Officers to protect Ward’s due process
and civil rights.

(Id. at 16.)

John Doe Shield #6814 informed

plaintiff that there was an administrative rule prohibiting
recordings in the courthouse.

(Id.)

Plaintiff expressed an

intent to confirm the rule’s existence by searching the internet
on his smartphone.

(Id.)

Bennett reiterated to plaintiff that she wanted him to
go to the third floor.

(Id. at 17.)

After some time had passed

and more people had gathered, plaintiff and Ward ultimately
proceeded to the third floor with Bennett, O’Brien and the John
Doe Officers, at which point Bennett directed plaintiff to sit

3

on a bench.

(Id.)

John Doe #1 instructed Ward to leave, but

Ward sat down next to plaintiff on the bench and refused to
leave.

(Id. at 17-18.)

John Does #1-4 then went into another

office, while Bennett, O’Brien, John Does Shield #3814, Shield
#7910, #5, and #6 supervised plaintiff and Ward.

(Id. at 18.)

Soon after, Lowe emerged from the office and ordered
O’Brien to “[g]ive [plaintiff] an order and then arrest
him . . . .”
leave.

(Id.)

(Id.)

Meanwhile, O’Brien told Ward that he could

Plaintiff told defendants that he would erase the

video from his phone, then “stood up and was about to start
recording when . . . Lowe grabbed his phone from behind and took
the phone out from his right hand” before heading back into the
office.

(Id.)

Thereafter, Ward was arrested by John Doe Shield

#7910, and plaintiff was arrested by Bennett.

(Id. at 18-19.)

Plaintiff states that Bennett went into the office for a few
minutes and “on information and belief [Bennett] was advised by
. . . Lowe to arrest [plaintiff].”

(Id. at 19.)

After being

placed in custody, plaintiff was transported to the 103rd
Precinct, where he was fingerprinted, photographed, and
allegedly denied the opportunity to make a phone call.
19-20.)

(Id. at

Several hours later, plaintiff was transported to

Queens Central Booking, where he was placed in a holding cell
with several other individuals.

(Id. at 20.)

Plaintiff was arraigned on April 16, 2014 and

4

transferred to Rikers Island later that night, around midnight.
(Id. at 21-23.)

He was released from custody later that day

(that is, on April 17, 2014) after bail had been posted by a
friend of plaintiff’s.

(Id. at 21-24.)

A criminal complaint,

sworn by Bennett, was filed against plaintiff charging him with
violating N.Y. Penal Law § 195.05, Obstructing Governmental
Administration in the Second Degree.

(Id. at 25.)

Plaintiff’s next court appearance in his criminal case
was on April 21, 2014, at which time his request to proceed pro
se was granted.

(Id. at 26.)

Plaintiff was advised by the

chief clerk of Q-IDV that, as a result of his arrest, signs had
been erected in the Queens Courts indicating that the use of
audio/video recording devices were prohibited in the courthouse
unless authorized by the Supervising Judge.

(Id.)

On April 29, 2014, May 6, 2014, June 6, 2014, June 13,
2014, June 20, 2014 and July 7, 2014, plaintiff arrived at the
Queens Civil Court and his cell phone was confiscated and
vouchered by a court officer and returned to him upon his
departure from the courthouse.

(Id. at 26-27, 29-30.)

On June

4, 2014 and July 8, 2014, Assistant District Attorney Piscionere
advised plaintiff by phone that the case him would be dismissed
for lack of evidence.

(Id. at 28.)

On June 20, 2014, plaintiff confronted Barry about the
continued confiscation of his cell phone upon entering the

5

courthouse and was advised that it was court policy to do so.
(Id. at 29.)

Plaintiff returned to the courthouse on July 7,

2014 to further discuss the cell phone confiscation policy with
Barry, but because Barry was not available, plaintiff went to
Lowe’s office where he proceeded to confront and argue with
Lowe.

(Id. at 30-31.)

Following this confrontation, plaintiff

exited Lowe’s office and another verbal confrontation occurred
between plaintiff, Lowe, John Doe Shield # 687, John Doe Shield
# 16 and John Doe Shield # 6814, during which Lowe threatened to
arrest plaintiff again.

(Id. at 31-33.)

Following this incident, plaintiff advised Piscionere
that he was harassed by Lowe, John Doe Shield # 687, John Doe
Shield # 16 and John Doe Shield # 6814.

(Id. at 33.)

requested an investigation which Piscionere refused.

He
(Id.)

On

July 8, 2014, plaintiff also wrote to Barry requesting an
investigation of Lowe.

(Id.)

Barry later informed plaintiff

that Queens Civil Court no longer has operable surveillance
cameras but did not respond to plaintiff’s request to
investigate Lowe.

(Id.)

When he did not receive a response

from Barry, plaintiff called Court Clerk Giddens to advise her
of the circumstances surrounding his April 16, 2014 arrest and
the incident on July 7, 2014, and expressed his intent to hold
her accountable.

(Id. at 34.)

On July 24, 2014, while in court, Piscionere offered a

6

dismissal of the criminal complaint against plaintiff provided
his co-defendant “Mr. Ward [took] an ACD” and/or plaintiff
withdrew his pending motions.

(Id. at 34.)

After plaintiff

declined the offers, Piscionere advised the court that a
superseding information would be filed against plaintiff and
Ward adding two counts of disorderly conduct.

(Id.)

The basis

of the superseding information was the sworn statement of
Bennett regarding the incident that occurred on April 16, 2014.
(Id. at 37-38.)
On November 17, 2014, Fogarty, now also prosecuting
the case for the Queens District Attorney’s Office, appeared in
court with Herring and stated that they had dismissed the top
count of Obstructing Governmental Administration in the Second
Degree against plaintiff and Ward.

(Id. at 40.)

Plaintiff and

Ward were offered a deal to resolve the case against them if
they agreed to take an adjournment in contemplation of dismissal
(ACD) on the two lesser charges of disorderly conduct, which
they both declined.

(Id.)

Queens Criminal Court.

The case remains pending before the

(Id. at 42-46.)

See also

https://iapps.courts.state.ny.us/webcrim (plaintiff identified
by name) (last visited 6/30/15).

Plaintiff seeks money damages

and declaratory and injunctive relief.

(Id. at 47-71.)

STANDARD OF REVIEW
Pro se complaints are held to less stringent standards

7

than pleadings drafted by attorneys, and the court is required
to read the plaintiff’s pro se complaint liberally and interpret
it as raising the strongest arguments it suggests.

Erickson v.

Pardus, 551 U.S. 89 (2007); Hughes v. Rowe, 449 U.S. 5, 9
(1980); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185,
191-93 (2d Cir. 2008).
Moreover, at the pleadings stage of the proceeding,
the Court must assume the truth of “all well-pleaded,
nonconclusory factual allegations” in the complaint.

Kiobel v.

Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)).

A

complaint must plead sufficient facts to “state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. 544, 570 (2007).

Bell Atl. Corp. v.

However, a district court

shall dismiss an in forma pauperis action where it is satisfied
that the action is “(i) frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
relief.”

28 U.S.C. § 1915(e)(2)(B)

8

DISCUSSION
In order to maintain a § 1983 action, a plaintiff must
allege two essential elements.

First, “the conduct complained

of must have been committed by a person acting under color of
state law.”

Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.1994)

(citation omitted).

Second, “the conduct complained of must

have deprived a person of rights, privileges or immunities
secured by the Constitution or laws of the United States.”

Id.

Section 1983 “does not create a federal right or benefit; it
simply provides a mechanism for enforcing a right or benefit
established elsewhere.”

Morris–Hayes v. Bd. of Educ. of Chester

Union Free Sch. Dist., 423 F.3d 153, 159 (2d Cir. 2005) (citing
Okla. City v. Tuttle, 471 U.S. 808, 816 (1985)).
I.

Claims Against Giddens and Brown
Although plaintiff names Queens County Civil Court

Clerk Maureen Giddens and Queens County District Attorney
Richard Brown as defendants, he does not sufficiently allege
that they were personally involved in the alleged deprivation of
plaintiff’s civil rights.

Plaintiff must demonstrate each

defendant’s direct or personal involvement in the actions which
are alleged to have caused the deprivation of plaintiff’s
constitutional rights.

Farrell v. Burke, 449 F.3d 470, 484 (2d

Cir. 2006); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1991);
Holmes v. Kelly, No. 13 CV 3122, 2014 WL 3725844, at *2

9

(E.D.N.Y. July 25, 2014); Kneitel v. Hynes, No. 11 CV 2883, 2011
WL 2747668, at *2 (E.D.N.Y. July 13, 2011).

Plaintiff must also

“allege a tangible connection between the acts of the defendant
and the injuries suffered.”

Bass v. Jackson, 790 F.2d 260, 263

(2d Cir. 1986).
In addition, liability under § 1983 generally cannot
be imposed on a supervisor solely based on his position because
there is no respondeat superior or vicarious liability under §
1983.

See, e.g., Iqbal, 556 U.S. 676 (“Because vicarious

liability is inapplicable to Bivens and § 1983 suits, a
plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the
Constitution.”); Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.
2003); King v. Warden, No. 13 CV 5307, 2013 WL 5652756, at *2
(E.D.N.Y. Oct. 11, 2013); Papadopoulos v. Amaker, No. 12 CV
3608, 2013 WL 3226757, at *3 (E.D.N.Y. June 25, 2013).

Here,

plaintiff fails to allege any facts to support a claim that
Queens County Civil Court Clerk Maureen Giddens or Queens County
District Attorney Richard Brown are responsible for any alleged
deprivation of plaintiff’s civil rights to state a claim for
liability under § 1983.

As to Ms. Giddens, plaintiff makes only

conclusory allegations that she was involved in the violation of
plaintiff’s constitutional rights.
63.)

(See Compl. at 52-53, 60-

Similarly, plaintiff allegations that Mr. Brown’s “overall

10

deliberate indifference” was a substantial cause of alleged
prosecutorial misconduct is insufficient to allege his personal
involvement in the deprivation of plaintiff’s constitutional
rights.

Therefore, all claims against Maureen Giddens and

Richard Brown are dismissed.
II.

Claims Against Herring, Fogarty, and Piscionere
Plaintiff’s claims against Queens County District

Attorney Office Deputy Bureau Chief Floyd Herring, Supervisory
Assistant District Attorney Kevin Fogarty and Assistant District
Attorney Taylor Piscionere are dismissed as it is “well
established that a state prosecuting attorney who acted within
the scope of his duties in initiating and pursuing a criminal
prosecution is immune from a civil suit for damages under §
1983.”

Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir.

2005) (internal quotations omitted).

“Prosecutorial immunity

from § 1983 liability is broadly defined, covering virtually all
acts, regardless of motivation, associated with [the
prosecutor’s] function as an advocate.”

Hill v. City of New

York, 45 F.3d 653, 661 (2d Cir. 1995) (internal quotations and
citations omitted).

Absolute immunity for prosecutorial acts

can be defeated only if the prosecutor is alleged to have acted
in the complete absence of jurisdiction, which is not the case
here.

Shmueli, 424 F.3d at 237; see also Buckley v.

Fitzsimmons, 509 U.S. 259, 274 n. 5 (1993) (acknowledging that

11

absolute immunity shields “prosecutor’s decision to bring an
indictment, whether he has probable cause or not”); Norton v.
Town of Islip, No. 12 CV 4463, --- F.Supp.3d ---, 2015 WL
1509505, at *21, n. 7 (E.D.N.Y. Mar. 31, 2015) (“speculation of
a retaliatory motive is insufficient to defeat a claim of
absolute immunity; indeed, the very concept of immunity is that
the Court does not inquire into the motivations that may be at
play.”) (internal citations omitted).

Plaintiff’s claims

against Herring, Fogarty and Piscionere for injunctive and
declaratory relief are likewise dismissed.

See Murdock v. Legal

Aid Society, No. 14 CV 508, 2015 WL 94245, at *4 (E.D.N.Y. Jan.
6, 2015).
III. Claims Against the City of New York
To state a claim for relief under § 1983 against a
municipal defendant, such as the City of New York, a plaintiff
must show the existence of an officially adopted policy or
custom that caused injury and a direct causal connection between
that policy or custom and the deprivation of a constitutional
right.

Monell v. Dep't of Social Servs. of City of New York,

436 U.S. 658, 694 (1978); see also Cash v. Cnty. of Erie, 654
F.3d 324, 333 (2d Cir. 2011) (“[T]o establish municipal
liability under § 1983, a plaintiff must prove that action
pursuant to official municipal policy caused the alleged
constitutional injury.” (internal quotation marks and citation

12

omitted)).

“Proof of a single incident of unconstitutional

activity is not sufficient to impose liability under Monell
unless proof of the incident includes proof that it was caused
by an existing, unconstitutional municipal policy, which policy
can be attributed to a municipal policymaker.”
City v. Turtle, 471 U.S. 808, 823 (1985).

City of Oklahoma

In addition, “[i]t is

well established that ‘local governments are responsible only
for their own illegal acts.

They are not vicariously liable

under § 1983 for their employees’ actions.’” Sam v. City of New
York, No. 14 CV 3253, 2014 WL 6682152, at *2 (E.D.N.Y. Nov. 24,
2014) (quoting Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011))
(internal quotation marks and citations omitted).
Here, plaintiff alleges that the “City was negligent
in the hiring and retention of the Defendants Herring, Fogarty
and Piscionere . . . .”

(Id. at 65.)

Plaintiff further alleges

that:
Richard Brown, as the manager and chief administrator
of the [Queens District Attorney’s Office], a City
agency, maintained a policy, custom and/or practice of
deliberate indifference to violations by . . .
employees of the constitutional rights of individuals
who were investigated and criminally prosecuted in
Queens County, including, but not limited to abuse of
process, manufacturing of false evidence, conspiring
with complaining witnesses, protecting ‘officers’ who
apply warrantless arrest, protect officers who commit
perjury, Brady violations, [and] failure to properly
investigate (“the policy”).
(Id. at 68.)

Plaintiff further argues that “it was the policy

13

of Brown to directly encourage, or be indifferent to and thereby
indirectly encourage, prosecutors and officers working with them
to abuse lawful process to maliciously prosecute defendants.”
(Id.

)
Plaintiff’s allegations here are wholly conclusory and

fail to state a claim for municipal liability.

See Dwares v.

City of New York, 985 F.2d 94, 100 (2d Cir. 1993) (a mere
assertion of a custom or policy is not sufficient to sustain a §
1983 claim against a municipal defendant in the absence of any
allegations of fact); Milo v. City of New York, -- F.Supp.3d -2014 WL 5933091, at *10 (E.D.N.Y. Nov. 14, 2014) (“generalized
allegations that the City adopted an official policy or custom
that deprived plaintiff of her constitutional rights are
insufficient to state a Monell claim.”).

Thus, plaintiff’s

claims against the City of New York are dismissed.
CONCLUSION
Accordingly, all claims against the City of New York,
Queens County Civil Court Clerk Maureen Giddens, Queens County
District Attorney Richard Brown, Deputy Bureau Chief Floyd
Herring, Supervisory Assistant District Attorney Kevin Fogarty
and Assistant District Attorney Taylor Piscionere are dismissed
with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
summonses shall issue as to these defendants.

No

The Clerk of

Court is directed to amend the caption and docket to reflect the

14

dismissal of these defendants.

Plaintiff’s claims shall proceed

against Deputy Clerk John Barry, Major Lowe, Court Officer Marie
Bennett, Lieutenant O'Brien, Court Officers John Doe Shield
#6814, John Doe Shield #3814, John Doe Shield #7910, John Doe
Shield #687 and John Does #1-16.
The United States Marshal Service is directed to serve
the summons, complaint, and this order upon the remaining
defendants without prepayment of fees.

A courtesy copy of the

same papers shall be mailed to the Attorney General for the
State of New York.

All pretrial matters are referred to

Magistrate Judge Lois Bloom.

The Court certifies pursuant to 28

U.S.C. § 1915(a)(3) that any appeal would not be taken in good
faith and therefore in forma pauperis status is denied for
purpose of an appeal.

Coppedge v. United States, 269 U.S. 438,

444-45 (1962).

SO ORDERED.
Dated: Brooklyn, New York
June 30, 2015
________/s/_____________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

15