Bailey et al v. Sullivan et al

Filing 43

MEMORANUM and ORDER: The Court dismisses the § 1983 claims pursuant to Federal Rule of Civil Procedure 12(b)(6). As against the city defendants, 35 the claims are dismissed as time-barred. As against the remaining defendants, 32 & 40 the y are dismissed because the defendants did not act under color of law. The Court declines to exercise supplemental jurisdiction over the remaining claims, all of which are brought under state law. Accordingly, the Court dismisses those claims without prejudice. Ordered by Judge Frederic Block on 1/10/2019. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------x
RACHAEL BAILEY, individually and as
legal guardian of N.B., a minor; MELVIN
BAILEY, individually and as legal
guardian of N.B., a minor; BLAYTON
WEBSTER,
Plaintiffs,

MEMORANDUM AND ORDER
Case No. 17-CV-05320 (FB) (PK)
Appearances:

-against-

For the Plaintiffs:

KEVIN SULLIVAN; THE CITY OF
NEW YORK; THE NEW YORK CITY
POLICE DEPARTMENT 63RD POLICE
PRECINCT, individually and as an agent
of THE NEW YORK CITY POLICE
DEPARTMENT;
VADIM
KONTROROVICH (SHIELD #: 27420),
individually and as a member of the NEW
YORK CITY POLICE DEPARTMENT
63RD POLICE PRECINCT; LOIS M
DIAGIANNI; ERIC GONZALEZ in his
capacity as Kings County District
Attorney; THE LEGAL AID SOCIETY
KINGS COUNTY,
Defendants.
------------------------------------------------x

Audrey A. Thomas
The Law Offices of Audrey A.
Thomas, P.C.
245-07 Francis Lewis Blvd.
Rosedale, NY 11422
For the Defendants:
Jacqueline C. Chavez
New York City Law Department
100 Church Street
New York, NY 10007
Karolina Wiaderna
Vigorito, Barker, Porter &
Patterson, LLP
300 Garden City Plaza
Garden City, NY 11530
Anthony DuBartell
2550 S. Seamans Neck Road
Seaford, NY 11783

1

BLOCK, Senior District Judge:
Pending before the Court are three motions to dismiss a litany of claims
brought against numerous defendants. Most of the claims sound in state law, but
some are brought under 42 U.S.C. § 1983. The Court dismisses the § 1983 claims
and dismisses the remaining claims for lack of subject-matter jurisdiction.
I.

Factual and Procedural Background

The plaintiffs are Rachael Bailey, Melvin Bailey, their minor child N.B.
(collectively, “the Baileys”), and their adult son, Blayton Webster. The defendants
are: (1) Kevin Sullivan and Lois M. DiGianni,1 the plaintiffs’ neighbors; (2) the
Legal Aid Society; and (3) the City of New York, the 63rd Precinct of the New York
Police Department (“NYPD”), NYPD Officer Vadim Kontrorovich, and Eric
Gonzalez, sued in his capacity as the District Attorney of Kings County (collectively,
“city defendants”). The Court treats the allegations as true for the purposes of a
motion to dismiss. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.
2002).
For several years, the Baileys lived next door to Sullivan, whose house was
owned by DiGianni. The Baileys’ and Sullivan’s relationship grew acrimonious: he
ousted them from a shared driveway, deposited garbage and debris on their lawn,

1

The caption spells DiGianni’s name as “Diagianni,” but her brief advises
that it is misspelled. This Order uses the correct spelling.
2

damaged their property, and shouted racial profanities at them.

On several

occasions, these incidents led to police involvement. Two incidents are relevant to
these motions.
First, on May 10, 2011, Sullivan threw garbage onto Webster’s car when he
was visiting his parents for dinner. This resulted in a verbal altercation between the
two men, with Sullivan aggressively yelling racial slurs at Webster. The police
responded to a disturbance call and Sullivan (allegedly falsely) told them that
Webster assaulted him and that Mrs. Bailey chased him with a machete. Based on
this report, Bailey and Webster were arrested and charged with various state law
crimes. They were represented by the Legal Aid Society, which successfully
negotiated a plea deal of disorderly conduct.2 Webster and Bailey were both
sentenced on November 27, 2012. An order of protection was also issued, requiring
them to keep away from Sullivan.
Second, on May 2, 2013, Mrs. Bailey and Sullivan got into another verbal
altercation. Bailey called 911 and Officer Kontrorovich responded to the call. After
speaking with Sullivan, he placed Bailey under arrest. Once released from police
custody, she was turned over to Immigration and Customs Enforcement (“ICE”)

2

The Legal Aid Society represents that Webster’s lawyer was not a Legal Aid
Society lawyer but rather a private attorney assigned to Webster pursuant to New
York County Law Article 18-B. Because this is a factual dispute, the Court must
credit the plaintiff’s allegation at this stage.
3

custody and immediately placed in removal proceedings. On September 11, 2014,
Bailey was acquitted of all criminal charges. Although she was released from ICE
custody several months after her arrest, she still remains in removal proceedings
despite her acquittal. At her second trial, as well as in the immigration matters,
Bailey was represented by private counsel at her own expense.
On September 12, 2017, the plaintiffs filed this lawsuit. The operative Second
Amended Complaint (“SAC”) lists the following causes of action, some of which
are noted as pertaining only to particular defendants: (1) “42 U.S.C. § 1983”; (2)
“Municipal Liability”; (3) “Ineffective Assistance of Counsel” (against the Legal
Aid Society); (4) “Conversion” (against DiGianni and Sullivan); (5) “Racial
Profiling and Discrimination”; (6) “Malicious Prosecution”; (7) “Harassment”;
(8) “Failure to Properly Investigate”; (9) “Tortious Interference with Contracts”;
(10) “Intentional Infliction of Emotional Distress”; (11) “Bullying”; (12) “Punitive
Damages”; (13) “Fraud” (against Sullivan); and (14) “Attorney’s Fees, Costs, and
Disbursements.” All defendants subsequently move to dismiss.
II.

Discussion

The only claims brought under federal law are brought under 42 U.S.C.
§ 1983. Although some of the other “causes of action,” such as “municipal liability,”
“racial profiling and discrimination,” and “ineffective assistance of counsel” are tied

4

to the § 1983 claims, those “causes of actions” are really theories of liability under
§ 1983 and do not represent standalone federal claims.
A.

City Defendants (Statute of Limitations)
Statutes of limitation for § 1983 claims are dictated by state law; New York

sets it at three years. Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997). The date
of accrual for § 1983 claims, however, is governed by federal law, which starts the
clock “when the plaintiff knows or has reason to know of the injury which is the
basis of his action.” Id. (quoting Singleton v. City of New York, 632 F.3d 185, 191
(2d Cir. 1980)). New York law tolls the statute for minors, N.Y. C.P.L.R. 208, but
because the tolling is “personal” to the minor, it does not extend to any derivative
claims, Nardi v. County of Nassau, 18 A.D. 520, 521 (N.Y. App. Div. 2005).
Here, the § 1983 claims against the city defendants stem from the actions
surrounding the two arrests and the associated criminal proceedings. The second
arrest, however, took place on May 2, 2013—more than four years prior to the filing
of this lawsuit. To the extent that the plaintiffs assert any violations after that date—
see, e.g., SAC ¶ 147 (alleging that the Kings County District Attorney’s Office
refused to turn over exculpatory evidence during the second trial)—the latest
possible accrual date for those acts is the date of acquittal, September 11, 2014.
Because the action was not brought until September 12, 2017, the § 1983 claims are
time-barred.
5

The plaintiffs point to the infant tolling statute, but because the infant tolling
statute is personal to the infant, it cannot toll the statute of limitations for the parents
for any derivative claims. See Nardi, 18 A.D. at 521 (mother’s malpractice claim
for infant was time-barred notwithstanding the infancy toll because the claim was
derivative).

Meanwhile, there are no allegations in the complaint that city

defendants violated N.B.’s own constitutional rights. She was not arrested or
targeted by the city defendants. The harm that she is alleging (which arose after the
witness of her mother’s arrest, see SAC ¶¶ 127–31) is covered by the state law
claims, including intentional infliction of emotional distress.
Finally, plaintiffs allude to the continuing violation doctrine. See SAC ¶ 15.
This doctrine “provides an ‘exception to the normal knew-or-should-have-known
accrual date.’” Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015) (quoting Harris
v. City of New York, 186 F.3d 243, 248 (2d Cir. 1999)). The doctrine can be invoked
when multiple discrete acts collectively result in some injury. However, it can only
apply when at least one non-time-barred act occurred within the statutory time-limit.
Id. Because the last alleged act that is potentially violative occurred more than three
years prior to the filing date, all of the § 1983 claims against the city defendants are
time-barred.

6

B.

Remaining Defendants (Color of State Law)
The § 1983 claims against the remaining defendants are dismissed because

they were not acting under color of state law, as required by the statute. See Lugar
v. Edmonson Oil Co., 457 U.S. 922, 928 (1982).
The Legal Aid Society is only being charged in its capacity as Mrs. Bailey’s
and Webster’s counsel at their first criminal trial. It is settled law that public
defenders do not act under color of state law for § 1983 purposes, at least in their
capacity as counsel. Polk County v. Dodson, 454 U.S. 312, 325 (1981) (“[A] public
defender does not act under color of state law when performing a lawyer’s traditional
functions as counsel to a defendant in a criminal proceeding.”); Rodriguez v. Weprin,
116 F.3d 62, 66 (2d Cir. 1997) (“[I]t is well-established that court-appointed
attorneys performing a lawyer’s traditional functions as counsel to defendant do not
act ‘under color of state law’ and therefore are not subject to suit under 42 U.S.C.
§ 1983.”).
Sullivan and DiGianni are private parties. They are not employed by the state
and did not purport to carry out any actions on behalf of the state. Accordingly,
Sullivan and DiGianni are not amenable to suit under § 1983, either.
C.

State Law Claims
The remaining claims are all brought under state law. A district court “may

decline to exercise supplemental jurisdiction over a claim . . . if [it] has dismissed
7

all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). As the
Supreme Court has noted, “in the usual case in which all federal-law claims are
eliminated before trial, the balance of factors to be considered under the pendent
jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will
point toward declining to exercise jurisdiction over the remaining state-law claims.”
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351 n.7 (1988).
Here, all the factors weigh in favor of dismissal. The case is still in its very
preliminary stages. All of the parties are New York residents asserting purely New
York state law claims. It would be equally convenient and fair to litigate in state
court as in federal court. See, e.g., Klein & Co. Futures, Inc. v. Bd. of Trade of City
of New York, 464 F.3d 255, 262 (2d Cir. 2006) (“It is well settled that where, as here,
the federal claims are eliminated in the early stages of litigation, courts should
generally decline to exercise pendent jurisdiction over remaining state law claims.”);
Hedges v. Town of Madison, 456 F. App’x 22, 24 (2d Cir. 2012) (dismissal was
appropriate “given the early stages of [the] proceedings and our deference to state
courts” where the only claims were Connecticut state law claims). Accordingly, the
Court declines to exercises supplemental jurisdiction over the remaining claims.
III.

Conclusion

The Court dismisses the § 1983 claims pursuant to Federal Rule of Civil
Procedure 12(b)(6). As against the city defendants, the claims are dismissed as time8

barred.

As against the remaining defendants, they are dismissed because the

defendants did not act under color of law.

The Court declines to exercise

supplemental jurisdiction over the remaining claims, all of which are brought under
state law. Accordingly, the Court dismisses those claims without prejudice.
SO ORDERED.

_/S/ Frederic Block____________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
January 10, 2019

9