Kogut v. The County of Nassau et al
MEMORANDUM & ORDER granting in part and denying in part 222 Motion for Summary Judgment. For the foregoing reasons, Defendants' motion for summary judgment is GRANTED IN PART AND DENIED IN PART. So Ordered by Judge Joanna Seybert on 8/27/2012. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
-againstTHE COUNTY OF NASSAU, POLICE
COMMISSIONER DONALD KANE, POLICE
COMMISSIONER WILLIAM J. WILLETT (2005),
POLICE COMMISSIONER JAMES LAWRENCE,
DETECTIVE SEAN SPILLANE (HEAD OF HOMICIDE
1985), DETECTIVE DENNIS FARRELL (HEAD OF
HOMICIDE 2005), CAROLANN HESSEMAN, AS
EXECUTRIX FOR THE ESTATE OF JOSEPH VOLPE,
DETECTIVE ROBERT DEMPSEY, DETECTIVE ALBERT
MARTINO, DETECTIVE WAYNE BIRDSALL,
DETECTIVE MILTON G. GRUBER, DETECTIVE
CHARLES FRAAS, DETECTIVE FRANK SIRIANNI,
DETECTIVE HARRY WALTMAN, P.O. MICHAEL
CONNAUGHTON, P.O. WILLIAM DIEHL, and
JOHN DOES 1-5,
JOHN RESTIVO, DENNIS HALSTEAD,
MELISSA LULLO, JASON HALSTEAD,
HEATHER HALSTEAD, and TAYLOR
- against NASSAU COUNTY, CAROLANN HESSMAN, AS
EXECUTRIX FOR THE ESTATE OF JOSEPH VOLPE,
in his individual capacity, ROBERT DEMPSEY,
in his individual capacity, FRANK SIRIANNI,
in his individual capacity, MILTON GRUBER,
in his individual capacity, HARRY WALTMAN
in his individual capacity, ALBERT MARTINO,
in his individual capacity, CHARLIE FRAAS,
in his individual capacity, THOMAS ALLEN
in his individual capacity, RICHARD BRUSA,
in his individual capacity, VINCENT DONNELLY,
in his individual capacity, MICHAEL
CONNAUGHTON, in his individual capacity,
WAYNE BIRDSALL, in his individual capacity,
WILLIAM DIEHL, in his individual capacity,
JACK SHARKEY, in his individual capacity,
DANIEL PERRINO, in his individual capacity,
ANTHONY KOZIER, in his individual capacity,
Detective Sergeant CAMPBELL, (Shield #48),
in his individual capacity, SEAN SPILLANE,
in his individual capacity, RICHARD ROE
SUPERVISORS #1-10, in their individual
Anthony M. Grandinette, Esq.
John T. Serio, Esq.
Grandinette & Serio, LLP
114 Old Country Road, Suite 420
Mineola, New York 11501
Paul Casteleiro, Esq.
86 Hudson Street
Hoboken, New Jersey 07030
Barry C. Scheck, Esq.
Deborah L. Cornwall, Esq.
Monica R. Shah, Esq.
Nick Joel Brustin, Esq.
Anna Benvenutti Hoffman, Esq.
Sonam A. H. Henderson, Esq.
Cochran, Neufeld & Scheck, LLP
99 Hudson Street, 8th Floor
New York, New York 10013
Louis M. Freeman, Esq.
Lee Ginsberg, Esq.
Freeman, Nooter & Ginsberg
75 Maiden Lane, Suite 503
New York, New York 10038
David L. Lewis, Esq.
Lewis & Fiore, Esq.
225 Broadway, Suite 3300
New York, New York 10007
Liora M. Ben-Sorek, Esq.
Sondra Meryl Toscano, Esq.
Christine Ann Lobasso, Esq.
Dennis J. Saffran, Esq.
Sondra Meryl Toscano, Esq.
Office of the Nassau County Attorney
One West Street
Mineola, New York 11501
SEYBERT, District Judge:
pending motion for partial summary judgment (Docket Entry 222).
Defendants’ motion is GRANTED IN PART AND DENIED IN PART in
accordance with the following discussion.
Summary judgment is only appropriate where the moving
party can demonstrate that there is “no genuine dispute as to
any material fact” and that the moving party is entitled to
FED. R. CIV. P.
considering this question, the Court considers “the pleadings,
depositions, answers to interrogatories and admissions on file,
The basic facts of this case have been recounted in the Court’s
previous decisions, most recently in Docket Entry 350. Kogut v.
Nassau, Nos. 06-CV-6695, 06–CV–6720, 2012 WL 3536717 (E.D.N.Y.
Aug. 15, 2012).
together with any other firsthand information including but not
limited to affidavits.”
Nnebe v. Daus, 644 F.3d 147, 156 (2d
Cir. 2011); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986); McLee v.
Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); FED. R. CIV. P.
“In assessing the record to determine whether there is a
genuine issue to be tried . . . the court is required to resolve
all ambiguities and draw all permissible factual inferences in
favor of the party against whom summary judgment is sought.”
McLee, 109 F.3d at 134.
The burden of proving that there is no
genuine issue of material fact rests with the moving party.
Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223
(2d Cir. 1994) (citing Heyman v. Commerce & Indus. Ins. Co., 524
F.2d 1317, 1320 (2d Cir. 1975)).
Once that burden is met, the
demonstrate that “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party,” Anderson v.
Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L.
Ed. 2d 202 (1986).
“Mere conclusory allegations or denials will
Williams v. Smith, 781 F.2d 319, 323 (2d Cir.
And “unsupported allegations do not create a material
issue of fact.”
Weinstock v. Columbia Univ., 224 F.3d 33, 41
(2d Cir. 2000).
Defendants argue that (1) the individual Defendants
are entitled to qualified immunity; (2) Plaintiffs cannot prove
municipal liability; (3) Restivo and Halstead cannot prove a
Section 1983 conspiracy; and (4) Kogut cannot hold the police
Defendants responsible for the decision to re-try Kogut in 2005.
The Court addresses each argument in turn.
I. Qualified Immunity
Defendants argue that the individual Defendants are
entitled to qualified immunity on Plaintiffs’ due process claims
to the extent that those claims are premised on (1) a supposed
right to a constitutionally-adequate investigation of the Fusco
exculpatory and impeaching evidence to prosecutors; or (3) an
(Def. Br. 5.)
Plaintiffs clarify that these are not the bases of liability on
which their due process claims rest.
Rather, they explain that the scope of Defendants’
(R/H Opp. 6 n.5; Kogut
warnings are evidence of Defendants’ overall attempt to frame
Plaintiffs for the Fusco murder.
(See R/H Opp 6 n.5.)
individual Defendants do not enjoy qualified immunity from these
See Limone v. Condon, 372 F.3d 39, 48 (1st Cir. 2004)
(concluding “without serious question” that, based on Supreme
least as early as 1967 “that framing innocent persons would
violate the constitutional rights of the falsely accused”).
Defendants are not entitled to qualified immunity on claims that
they deliberately or recklessly suppressed or withheld favorable
See, Newsome v. McCabe, 260 F.3d 824 (7th Cir. 2001)
(“But if the right characterization of the defendants' conduct
misdirect or mislead the prosecutors and the defense, then there
is a genuine constitutional problem.”); Blake v. Race, 487 F.
notwithstanding Walker v. City of N.Y., 974 F.2d 293 (2d Cir.
1992), a Second Circuit case decided in 1992, it was clearly
established that police had Brady obligations at least as early
II. Municipal Liability
The Court finds that Plaintiffs have proffered enough
evidence to raise a jury question as to municipal liability
under Monell v. Department of Social Services, 436 U.S. 658, 98
incidents by non-policymaking employees are insufficient to hold
Plaintiffs can prevail against the County if they can establish
constituted a custom or policy of which supervisory authorities
must have been aware, or occurs under circumstances evidencing
Jones v. Town of E. Haven, --- F.3d ----, 2012 WL
3104523, at *6 (2d Cir. Aug. 1, 2012).
One way to satisfy these
requirements is by establishing that policymakers acquiesced in
the unconstitutional behavior of their subordinates.
Okin v. Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415,
439-440 (2d Cir. 2009).
acquiesced in the alleged constitutional abuses of its homicide
notice that Restivo had been physically assaulted during his
allegations (R/H Stmt. of Disputed Facts ¶¶ 59-65); credible
allegations that detectives planted hair evidence in Restivo’s
van surfaced at Restivo and Halstead’s 1986 criminal trial, yet
the County conducted no investigation (id. ¶¶ 67-70); in 1995,
the County learned that Volpe elicited a false confession from a
murder suspect (which eventually resulted in a civil settlement)
but did not investigate or discipline him (id. ¶¶ 71-76); in
elicited a false confession, but Dempsey was never investigated
or disciplined (id. ¶¶ 77-87); the County settled a 2002 civil
suspect in a different murder investigation (id. ¶¶ 88); see
also Martinez v. Cnty. of Nassau, No. 02-CV-4985 (JS)(WDW));
and, prior to the Fusco investigation, a manslaughter conviction
was reversed because of an illegal confession obtained by NCPD
N.Y.S.2d 99, 101 (2d Dep’t 1979).
This evidence--especially the failure to investigate
or discipline detectives involved in false confessions--suggests
unconstitutional conduct by its officers.”
years earlier in 1985.
(Def. Reply 12-13.)
Okin, 577 F.3d at
In the Court’s
policymakers’ attitudes at the time of the Fusco case.
2012 WL 3104523, at *10 (“It is not unreasonable to infer that
Town officials who were indifferent to such abuse in 2000 might
have held similar attitudes three years earlier.”); see also
Chepilko v. City of N.Y., No. 06-CV-5491, 2012 WL 398700, at *15
(E.D.N.Y. Feb. 6, 2012) (“Subsequent or contemporaneous conduct
can be circumstantial evidence of the existence of preceding
municipal policy or custom.”).
Obviously the gap between the
initial Fusco investigation and the later false confession cases
is greater than the three-year gap discussed in Jones, but at
least two of the later cases involved detectives (Volpe and
Dempsey, respectively) who had a hand in the Fusco case.
in any event, the timing is a matter of weight for the jury.
Plaintiffs also assert Monell liability on failure-tosupervise
Hartford, 361 F.3d 113, 127 (2d Cir. 2004) (Sotomayor, J.), and
although the failure-to-supervise claim survives, the failureto-train claim does not.
The failure-to-supervise theory may
physically assaulted during his interrogation.
See id. at 127-
alleged excessive force incidents and failure to take corrective
The failure-to-train theory, on the other hand, may
Plaintiffs assert that the County ought to have trained its
interrogations and that its failure to do so proximately caused
a deprivation of Plaintiffs’ rights.
train claims require evidence that (1) a municipality knows that
situation will present employees with a difficult decision that
would be made easier with proper training; and (3) the wrong
choice by the employee “will frequently cause the deprivation of
a citizen’s constitutional rights.”
Walker, 974 F.2d at 297-98.
violations of clearly established constitutional rights by badly
Liability often depends on whether a municipality had notice
that more training is needed.
See Walker, 974 F.2d at 299-300
(“While it is reasonable for city policymakers to assume their
employees possess common sense, where there is a history of
conduct rendering this assumption untenable, city policymakers
may display deliberate indifference by doing so.”).
See Connick v. Thompson, --- U.S. ----, 131 S. Ct.
1350, 1360 n.7, 179 L. Ed. 2d 417 (2011); Chepilko, 2012 WL
398700, at *15 n.11.
Here, there is no evidence that County policymakers
had notice prior to the Fusco investigation that the on-the-job
training its homicide detectives received was likely to result
cases in which confessions were ruled invalid because of police
In one case, police evaded a 17-year-old suspect’s
mother’s attempt to contact her son during the interrogation.
This is not the type of misconduct at issue in the present case.
See, e.g., Okin, 577 F.3d at 440 (requiring plaintiff to show a
training “deficiency [that] is closely related to the ultimate
(Nassau Cnty Ct. 1983), officers did not provide the proper
Although Miranda is an issue in the present
case, Valle is not evidence from which a jury could infer the
County’s deliberate indifference toward training its officers on
issued a memo to all personnel reaffirming its Miranda policy.
(Pls. Ex. 135.)2
In their discussion of their failure-to-train and failure-tosupervise claims, Restivo and Halstead cite the opinion of their
police practices expert. (R/H Opp. 20.) As it relates to the
failure-to-train claim, this opinion primarily addresses NCPD
officers’ failure to keep contemporaneous records of their
investigations and their approach toward interrogations.
Because there is no evidence that NCPD policymakers had notice
prior to the Fusco investigation that the shortcomings described
in the report had actually led to abuses (other than the Miranda
violation, treated above), Plaintiffs rely on Vann v. City of
N.Y., 72 F.3d 1040, 1049 (2d Cir. 1995), for the proposition
that expert testimony by itself can establish deliberate
indifference in a failure-to-train case. Id. (“Deliberate
indifference may also be shown through expert testimony that a
practice condoned by the defendant municipality was ‘contrary to
the practice of most police departments’ and was ‘particularly
dangerous’ because it presented an unusually high risk that
constitutional rights would be violated.” (quoting Dodd v. City
of Norwich, 827 F.2d 1, 4-6 (2d Cir. 1987) modified on reh'g on
other grounds, 827 F.2d 1, 7 (2d Cir. 1987)) (emphasis added)).
The Court is not persuaded. The deficient procedures and
practices described in the expert report were not aimed at
“particularly dangerous” aspects of police work. Dodd, for
example, concerned a policy whereby police officers were
supposed to keep a gun in their hand while they were attempting
to handcuff a suspect. 827 F.2d at 5; see also City of Canton
v. Harris, 489 U.S. 378, 390 n.10, 109 S. Ct. 1197, 1205 n.10,
103 L. Ed. 2d 412 (1989) (theorizing that the need for training
police officers on the constitutional limits on the use of
deadly force in pursuing felons may be “so obvious” that the
failure to train could be characterized as deliberate
indifference without a showing that officers had violated
constitutional rights in the past). Moreover, to the extent
that Plaintiffs rely on the expert report to show that the
County was deliberately indifferent to the need to train its
detectives not to physically abuse suspects in pursuit of a
confession, this type of misconduct is so beyond the pale that-absent notice to the contrary--the County was entitled to rely
on a common sense assumption that its officers would not behave
this way. Walker, 974 F.2d 299-300 (“Where the proper response-to follow one's oath, not to commit the crime of perjury, and
to avoid prosecuting the innocent--is obvious to all without
training or supervision, then the failure to train or supervise
is generally not ‘so likely’ to produce a wrong decision as to
support an inference of deliberate indifference by city
policymakers to the need to train or supervise.”).
failure-to-supervise theories can proceed to trial.
are entitled to summary judgment on Plaintiffs’ failure-to-train
III. Restivo and Halstead’s Conspiracy Claim
summary judgment on Restivo and Halstead’s conspiracy claims,
which arise out of several police informants’ allegedly offering
false testimony in exchange for various benefits.
(Def. Br. 22-
“To prove a § 1983 conspiracy, a plaintiff must show: (1)
an agreement between two or more state actors or between a state
actor and a private entity; (2) to act in concert to inflict an
Culbertson, 200 F.3d 65, 72 (2d Cir. 1999).
have identified the informants, the alleged false testimony, and
the benefits the informants received.
(See, e.g., R/H Stmt. of
creates a triable issue on the conspiracy claims.
200 F.3d at 72 (conspiracies are inherently secretive and “may
IV. Kogut’s 2005 Malicious Prosecution Claim
claim arising from his 2005 retrial must be dismissed because
Neither argument is availing.
As to the first, NCPD
officers cannot use the prosecutors’ decision-making to shield
their alleged wrongdoing.
E.g., Jones v. City of Chicago, 856
F.2d 985, 993 (7th Cir. 1988) (“But the jury could find that the
defendants systematically concealed from the prosecutors, and
misrepresented to them, facts highly material to-that is, facts
likely to influence-the decision whether to prosecute Jones and
whether (that decision having been made) to continue prosecuting
him right up to and into the trial.”); Blake, 487 F. Supp. 2d at
As to the arguable probable cause, Kogut has raised an
issue of fact whether the presumption of probable cause flowing
from his indictment can be rebutted by “evidence establishing
that the police witnesses ‘have not made a complete and full
falsified evidence . . . or otherwise acted in bad faith.’”
Boyd v. City of N.Y., 336 F.3d 72, 76 (2d Cir. 2003) (quoting
Colon v. City of N.Y., 60 N.Y.2d 78, 82-83, 455 N.E.2d 1248,
1250-51, 468 N.Y.S.2d 453, 455-56 (1983)).
summary judgment is GRANTED IN PART AND DENIED IN PART.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
27 , 2012
Central Islip, New York
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