Bristol v. Queens County et al

Filing 95

ORDER ADOPTING REPORT AND RECOMMENDATIONS; granting 42 Motion to Dismiss; denying 50 Motion for Summary Judgment; adopting Report and Recommendations as to 64 Report and Recommendations. Having conducted a review of the full record and the applicable law, and having reviewed the R&R for clear error, the Court adopts the findings and recommendations contained in the R&R in their entirety. Even under a de novo standard, the Court adopts the R&R in its entirety. Accordingly, IT IS HEREB Y ORDERED that the Nassau County Defendants' motion to dismiss is granted in its entirety, and plaintiff's motion for summary judgment is denied. IT IS FURTHER ORDERED that plaintiff is granted leave to re-plead as directed by the R&R by filing an Amended Complaint within thirty days of the date of this Memorandum and Order. A copy of this Order has been mailed to pro se plaintiff by the Court. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/3/2012. (Maxwell, Rita)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 09-CV-5544 (JFB) (AKT)
_____________________

MARCEL C. BRISTOL,
Plaintiff,

VERSUS

COUNTY OF NASSAU, ET AL.,
Defendants.
___________________
ORDER ADOPTING REPORT AND RECOMMENDATION
January 3, 2012
___________________

JOSEPH F. BIANCO, District Judge:

Police Department, Detective Ronald R.
Schepis and Detective John Harvey
(collectively “Nassau County Defendants”).

On December 14, 2009, pro se plaintiff
Marcel Bristol (“plaintiff” or “Bristol”)
brought this action, pursuant to 42 U.S.C. §
1983, against defendants Queens County, the
Queens County District Attorney’s Office,
Queens County District Attorney Richard
Brown, Assistant District Attorney Kendia
Henry, Assistant District Attorney Neil Gitin,
the New York Police Department (“NYPD”),
NYPD detectives John Does 1-5 (collectively
“Queens County Defendants”), as well as
Nassau County, the Nassau County District
Attorney’s Office, Nassau County District
Attorney Kathleen Rice, Assistant District
Attorney Lauren Doddato, Assistant District
Attorney “Jane Doe”, the Nassau County

Before the Court is a Report and
Recommendation (“R&R”) from Magistrate
Judge Tomlinson, as well as plaintiff’s
objections to the R&R.
The R&R
recommended that the Nassau County
Defendants’ motion to dismiss be granted and
plaintiff’s cross-motion for summary
judgment be denied. Furthermore, the R&R
recommended that plaintiff be granted thirty
(30) days to amend his pleading to attempt to
correct the deficiencies. For the reasons that
follow, the Court adopts in full Judge
Tomlinson’s thorough and well-reasoned
R&R.

plaintiff completed his review of the file. On
April 27, 2011, plaintiff filed a memorandum
of law in support of objections to the R&R.
(Pl.’s Objections, April 27, 2011 ECF No.
82.) Accordingly, by Order dated May 2,
2011, the Court lifted the stay.

I. PROCEDURAL HISTORY
On December 14, 2009, pro se plaintiff
Marcel Bristol brought this action pursuant to
42 U.S.C. § 1983 against the Queens County
Defendants and the Nassau County
Defendants. On June 7, 2010, the Nassau
County Defendants filed a motion to dismiss
the complaint. Plaintiff filed a cross-motion
for summary judgment on July 15, 2010,
which also served as plaintiff’s opposition to
the Nassau County Defendants’ motion to
dismiss. The Nassau County Defendants filed
their opposition to plaintiff’s cross-motion for
summary judgment on July 16, 2010. The
Nassau County Defendants submitted their
reply with respect to their motion to dismiss
on August 4, 2010. By Order dated August
26, 2010, the Court referred the motions to
Magistrate Judge A. Kathleen Tomlinson for
a report and recommendation.

II. STANDARD OF REVIEW
A district judge may accept, reject, or
modify, in whole or in part, the findings and
recommendations of the Magistrate Judge.
See DeLuca v. Lord, 858 F.Supp. 1330, 1345
(S.D.N.Y. 1994); Walker v. Hood, 679
F.Supp. 372, 374 (S.D.N.Y. 1988). As to
those portions of a report to which no
“specific written objection” is made, the Court
may accept the findings contained therein, as
long as the factual and legal bases supporting
the findings are not clearly erroneous. See
Greene v. WCI Holdings Corp., 956 F.Supp.
509, 513 (S.D.N.Y. 1997) (citing Thomas v.
Arn, 474 U.S. 140, 149 (1985)); Santana v.
United States, 476 F. Supp. 2d 300, 302
(S.D.N.Y. 2007). Where the report is
dispositive of the case, the Court reviews de
novo the portions to which objections have
been filed. See Fed. R. Civ. P. 72(b);
Williams v. Beemiller, Inc., 527 F.3d 259, 264
(2d Cir. 2008) (noting that a report
recommending remand was dispositive).

On February 28, 2011, Magistrate Judge
Tomlinson issued the R&R recommending
that the Nassau County Defendants’ motion to
dismiss be granted and that plaintiff’s crossmotion for summary judgment be denied,
without prejudice, but granting plaintiff leave
to file an Amended Complaint. The R&R
further instructed that any objections to the
R&R be submitted within fourteen (14) days
of receipt. (See Report and Recommendation
dated February 28, 2011 (“R&R”), at 29-30.)
By letter dated March 10, 2011 plaintiff
requested an extension of the time during
which he must file objections to Magistrate
Judge Tomlinson’s Report and
Recommendation because of his need to
review the Queen’s County criminal file
before filing his objections. By Order dated
March 17, 2011, the Court, because there was
no specific date requested in plaintiff’s
application, treated the application as a
request to stay the lawsuit until such time that

III. ANALYSIS
The Court has conducted a review of the
full record, including, among other things, the
complaint, the parties’ respective submissions
in connection with the parties’ motions, as
well as the R&R, applicable law, and
plaintiff’s objections. Having reviewed de
novo all portions of the R&R to which
plaintiff specifically objects, and having
reviewed the remainder of the R&R for clear
error, the Court adopts the Report in its
2

particularity or specificity, she has evidence to
support, there was no double jeopardy, and
the Nassau County defendants had no part in
the prosecution of the plaintiff in Queens
County.’” (Pl.’s Objections at 2.)

entirety, for the reasons set forth therein and
below.1
Plaintiff asserts a number of objections to
the R&R’s recommendation that the Court
grant the Nassau County Defendants’ motion
to dismiss. In particular, plaintiff contends
that Judge Tomlinson erred because (1) the
R&R is predicated on misrepresentations by
the Nassau County Defendants, (2) dismissal
would violate the law of the case doctrine, (3)
the R&R incorrectly used the plaintiff’s arrest
in Nassau County as a ground to recommend
dismissal, (4) the R&R’s finding of immunity
was plain error and based on an incorrect
interpretation of the law, and (5) the
complaint established a pattern of violations
and misconduct establishing municipal
liability. As set forth below, these arguments
are without merit.

Plaintiff misquotes and mischaracterizes
Rogers’ declaration. Rogers’ declaration
states, “During a conversation with counsel
for Queens County, I was told that Plaintiff’s
files could not be produced as they are under
seal due to the dismissal of the criminal case
in Queens.” (Rogers Decl. at ¶ 14.) Rogers
requests an opportunity to conduct discovery
so that the Nassau County Defendants can
“establish their belief that: the charges
Plaintiff faced in Nassau County are separate
and different from those he was prosecuted for
in Queens County; Nassau County did not
participate in the decision to arrest or
prosecute Plaintiff in Queens.” (Id. at ¶ 17.)
As such, the R&R could not have been
predicated on the “misrepresentations” that
plaintiff alleges. Plaintiff has presented no
evidence that Rogers lied about the telephone
call or the substance of what was relayed
during the call.2

A. Alleged Misrepresentations
Plaintiff first alleges that the Nassau
County Defendants’ counsel, Jennean Rogers
(“Rogers”) made misrepresentations in her
declaration in opposition to plaintiff’s motion
for summary judgment. (Pl.’s Objections at 23; see also Decl. of Jennean R. Rogers
(“Rogers Decl.”), July 16, 2010, ECF No. 49.)
Plaintiff claims that Rogers falsely alleged
“‘she had a conversation with the Queens
County defendants’ attorney, who indicated to
her, the file of the Queens County defendants’
attorney, who indicated to her, the file of the
Queens County prosecution is sealed because
the case was terminated in plaintiff’s favor;
therefore defendants have no access to the
file, in which she claimed, without any

In addition, the Rogers declaration was
submitted in opposition to plaintiff’s motion
for summary judgment. Because the R&R
grants the Nassau County Defendants’ motion
to dismiss, summary judgment would be
inappropriate. Also, the R&R correctly
concludes that summary judgment would be
premature. The R&R sets forth the standard
2

The Court is aware that plaintiff signed a release of
the sealed records pursuant to C.P.L. § 160.50, and that
these records were eventually produced. (Order, May
9, 2011, ECF No. 85.) Even if the release had been
signed prior to Rogers’ declaration, as plaintiff claims
it was, (see Pl.’s Letter, July 27, 2010, ECF No. 54),
there is nothing to indicate that Rogers’ statement
regarding the substance of the telephone call is false.

1

Even if the Court reviewed the entire R&R under a de
novo standard, the Court would reach the same
conclusion for the reasons set forth in the thorough
R&R.

3

Comm’cns, PLC v. Bildirci, No. 04-Civ5217(RJS), 2009 WL 454136, at *2 (S.D.N.Y.
Feb. 23, 2009); McAnaney v. Astoria Fin.
Corp., 665 F. Supp. 2d 132, 142 (E.D.N.Y.
2009).
The Court’s Order directing
defendants to answer was not a decision on an
issue of law. Even if it was a decision on an
issue of law, the Court would, in its
discretion, decline to apply the law of the case
doctrine here. As such, plaintiff’s objection
on this ground is without merit.

for granting summary judgment in the absence
of discovery outlined in Wells Fargo Bank
NW ., N.A v. Taca Int’l Airlines S.A., 247 F.
Supp. 2d 352, 360 (S.D.N.Y. 2002) (citing
Berger v. United States, 87 F.3d 60, 65 (2d
Cir. 1996). The R&R correctly held that the
lack of discovery is not the fault of the Nassau
County Defendants. Even assuming arguendo
that the Queens County Defendants refused to
turn over the file after plaintiff delivered his
release for the records, this is not attributable
to the Nassau County Defendants, who are
separate entities and represented by separate
counsel. The Nassau County Defendants have
demonstrated that summary judgment would
be premature.

C. Plaintiff’s Nassau County Arrest
Plaintiff alleges that the R&R incorrectly
uses plaintiff’s conviction in Nassau County
to defeat his claim of false arrest. (Pl.’s
Objections at 5-6.) Although the plaintiff
objects to the R&R on the grounds that the
Nassau County Defendants were involved in
his re-arrest in Queens County, his pleadings
are insufficient to support plaintiff’s claim
under Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007). Plaintiff points to an alleged
conspiracy without any factual allegations to
support its basis.
Such a conclusory
allegation is insufficient to overcome a motion
to dismiss. See Ciambriello v. County of
Nassau, 292 F.3d 307, 325 (2d Cir. 2002)
(dismissing conspiracy allegations where they
were found “strictly conclusory”); see also
Walker v. Jastremski, 430 F.3d 560, 564 n.5
(2d Cir. 2005) (“[C]onclusory or general
allegations are insufficient to state a claim for
conspiracy under § 1983.” (citing
Ciambriello, 292 F.3d at 325 )); Sommer v.
Dixon, 709 F.2d 173, 175 (2d Cir. 1983) (“A
complaint containing only conclusory, vague,
or general allegations of conspiracy to deprive
a person of constitutional rights cannot
withstand a motion to dismiss.”); Green v.
Bartek, No. 3:05CV1851(SRU), 2007 WL
4322780, at *3 (D. Conn. Dec. 7, 2007) (“The
Second Circuit has consistently held that a

B. Law of the Case Doctrine
Plaintiff alleges that because this Court
ordered the defendants to answer plaintiff’s
complaint, the Court indicated “that plaintiff
alleged sufficient facts to state a claim against
the Nassau County Defendants” and
Magistrate Judge Tomlinson’s findings
regarding the insufficiencies in the complaint
violated the law of the case doctrine. (Pl.’s
Objections at 4-5.) The Court disagrees.
On December 23, 2009, this Court
ordered, inter alia, that the plaintiff be granted
leave to file his complaint without prepayment
of the filing fee and that defendants were to
answer plaintiff’s complaint pursuant to 42
U.S.C. 1997E(g).3 Order, Dec. 23, 2009, ECF
No. 6. This Order has no bearing on a motion
to dismiss. In any event, the law of the case
doctrine is discretionary, and applies to issues
of law already decided by the Court. See RSL

3

Under 42 U.S.C. 1997E(g), “[t]he Court may require
any defendant to reply to a complaint brought under
this section if it finds that the plaintiff has a reasonable
opportunity to prevail on the merits.”

4

E. Municipal Liability

claim of conspiracy to violate civil rights
requires more than general allegations.”).

Plaintiff alleges that he has alleged
sufficient facts to establish municipal liability.
(Pl.’s Objections at 8-9.) As Magistrate Judge
Tomlinson correctly noted, allegations against
a District Attorney’s office for prosecutorial
decisions cannot provide a basis for municipal
liability under Monell v. Dep’t of Social
Servs., 436 U.S. 658 (1978). As discussed
above, the decision to refer a case to another
prosecutor’s office constitutes a prosecutorial
decision and thus any municipal claim based
on that decision fails as a matter of law.

However, Magistrate Judge Tomlinson
correctly noted that plaintiff should be given
an opportunity to correct this pleading defect
by alleging “specific facts and claims against
the Nassau County Defendants with regard to
their involvement in the circumstances
surrounding his ‘re-arrest’ and prosecution in
Queens County.” (R&R at 26.)
D. Absolute Immunity
Plaintiff alleges that the defendants
associated with the Nassau County District
Attorney’s Office are not entitled to absolute
immunity because the act of referring the
charges to the Queens County District
Attorney’s Office was an investigative and
ministerial act, not a prosecutorial act. (Pl.’s
Objections at 7.)
The R&R correctly
determined that an act of referring charges is
a prosecutorial act. Just as the decision of
whether or not to prosecute requires “the
professional evaluation of the evidence
assembled by the police,” so does the
discretionary decision that a particular case is
more appropriately prosecuted in another
forum. See Buckley v. Fitzsimmons, 509 U.S.
259, 273 (1993); see also Toler v. Paulson,
551 F. Supp. 2d 1039, 1049 (E.D. Cal. 2008)
(prosecutor’s referral of case to Attorney
General’s Office for prosecution is a
prosecutorial act). Therefore, the Court
agrees with Magistrate Judge Tomlinson’s
conclusion that a prosecutor’s decision to
refer a case to another prosecutor’s office is
protected by absolute immunity.

In any event, even if plaintiff is attempting
to assert his municipal liability claim based on
some administrative action of the Nassau
County District Attorney’s Office, plaintiff’s
claim fails as a matter of law for the other
reasons stated in Magistrate Judge
Tomlinson’s R&R.

5

IV. CONCLUSION
Having conducted a de novo review of all
portions of the R&R to which plaintiff
specifically objects, and having reviewed the
remainder of the R&R for clear error, the
Court adopts the R&R in its entirety.
Accordingly, IT IS HEREBY ORDERED that
(1) the Nassau County Defendants’ motion to
dismiss is granted, and (2) plaintiff’s motion
for summary judgment is denied. IT IS
FURTHER ORDERED that plaintiff is
granted leave to re-plead as directed by the
R&R by filing an Amended Complaint within
thirty (30) days of the date of this
Memorandum and Order. A copy of this
Order has been mailed to pro se plaintiff.

SO ORDERED.
____________________
JOSEPH F. BIANCO
United States District Judge
Dated: January 3, 2012
Central Islip, New York
***
Plaintiff is proceeding pro se. The Nassau
County Defendants are represented by the
Office of the Nassau County Attorney, by
Andrew Kenneth Preston and Jennean R.
Rogers, 1 West Street, Mineola NY 11501.

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