Tretola et al v. D'Amico et al

Filing 40

MEMORANDUM & ORDER finding as moot 36 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 22 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 22 Motion to Dismiss for Lac k of Jurisdiction; granting in part and denying in part 23 Motion to Dismiss for Failure to State a Claim. For the foregoing reasons, the State Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART. Likewise, the County Defen dants' motion to dismiss is GRANTED IN PART and DENIED IN PART. Both motions are GRANTED as to Plaintiffs' claims for violation of their Second Amendment rights and for supervisory liability, and such claims are DISMISSED WITHOUT PREJUDICE. In addition, the County Defendant's motion to dismiss the claim for Monell liability is also GRANTED, and that claim is also DISMISSED WITHOUT PREJUDICE. Finally, the County Defendants' motion to dismiss Plaintiffs' malicious prosecut ion claim is GRANTED, and that claim is DISMISSED WITH PREJUDICE. Both motions are otherwise DENIED. As to those claims that have been dismissed without prejudice, Plaintiffs are GRANTED leave to replead. If they choose to do so, they must file an A mended Complaint within thirty (30) days of the date of this Memorandum and Order. Failure to do so will mean that these claims will be dismissed with prejudice and only the claims surviving this Memorandum and Order will proceed. Finally, the County Defendants' additional motion to dismiss is DENIED AS MOOT given that it is duplicative of the first motion. So Ordered by Judge Joanna Seybert on 7/1/2014. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
MARTIN TRETOLA; THOMAS TRETOLA;
MARBLES ENTERPRISES, INC. d/b/a
T&T GUNNERY; and T&T TACTICAL, INC.,
Plaintiffs,
-against-

MEMORANDUM & ORDER
13-CV-5705(JS)(AKT)

JOSEPH A. D’AMICO, Superintendent
of the New York State Police;
JAMES DEWAR, New York State Police
Captain; EDWARD FRANKE, New York
State Police Investigator; JOHN
DOES #1-8, New York State Police
Investigators; JOHN DOE #9, New
York State Police Technical
Sergeant; COUNTY OF NASSAU;
KATHLEEN M. RICE, Nassau County
District Attorney; ELISE MCCARTY,
Nassau County Assistant District
Attorney; KAREN BENNETT, Nassau
County Assistant District Attorney;
CHRIS RIBANDO, Nassau County
District Attorney Chief Investigator;
and NASSAU COUNTY DISTRICT ATTORNEY
INVESTIGATOR JOHN DOES #1-8,
Defendants.
----------------------------------------X
APPEARANCES
For Plaintiffs:
Charles H. Horn, Esq.
Harfenist Kraut & Perlstein, LLP
300 Marcus Avenue, 2nd Floor East
Lake Success, NY 11042
For Defendants
State Defendants:

County Defendants:

Daniel Scott Hallak, Esq.
Office of the New York State
Attorney General
300 Motor Parkway, Suite 230
Hauppauge, NY 11788
Ralph J. Reissman, Esq.
Nassau County Attorney’s Office

One West Street
Mineola, NY 11501
SEYBERT, District Judge:
Plaintiffs
Enterprises,

Inc.

Martin

d/b/a

T&T

Tretola,
Gunnery,

Thomas
and

Tretola,
T&T

Marbles

Tactial,

Inc.

(collectively, “Plaintiffs”) commenced this action on October
17, 2013 against defendants Joseph A. D’Amico, Superintendent of
the New York State Police; James Dewar, New York State Police
Captain;

Joseph

DeMaria,

New

York

State

Police

Senior

Investigator; Edward Franke, New York State Police Investigator;
John Does #1-8, New York State Police Investigators; John Doe
#9, New York State Police Technical Sergeant (collectively, the
“State Defendants”); County of Nassau (“the County”); Kathleen
M. Rice, Nassau County District Attorney; Elise McCarthy, Nassau
County Assistant District Attorney; Karen Bennett, Nassau County
Assistant

District

Attorney;

Charles

Ribando,

Nassau

County

District Attorney Chief Investigator (together with the County,
Rice, McCarthy, Bennett, and Ribando, the “County Defendants”);
and Nassau County District Attorney Investigator John Does #1-8
(collectively, “Defendants”) pursuant to 42 U.S.C. §§ 1983 and
1988.

Currently pending before the Court are: (1) the State

Defendants’ motion to dismiss (Docket Entry 22); (2) the County
Defendants’ motion to dismiss (Docket Entry 23); and (3) an
additional motion by the County Defendants to dismiss, which is

2

duplicative of their first motion (Docket Entry 36).

For the

following reasons, the State Defendants’ motion to dismiss is
GRANTED

IN

PART

and

DENIED

IN

PART,

the

County

Defendants’

motion to dismiss is GRANTED IN PART and DENIED IN PART, and the
County Defendants’ additional motion to dismiss is DENIED AS
MOOT given that it is duplicative of the first motion.
BACKGROUND1
Plaintiffs’

claims

stem

from

a

2010

investigation.

Prior to that time, in or about March 2006, the County, under
the direction of Rice, began an investigation into T&T Gunnery,
Martin Tretola’s firearms store located in Seaford, New York.
(Compl. ¶ 18.)

The County ultimately brought seven misdemeanor

charges against T&T Gunnery in Nassau County District Court.
(Compl. ¶ 20.)
charges.

After a trial, the court dismissed all of the

(Compl.

¶

20.)

Thereafter,

the

County

and

Rice

initiated a felony prosecution for reckless endangerment against
Martin Tretola.
(Compl. ¶ 22.)

(Compl. ¶ 21.)

That charge was also dismissed.

As a result, Martin Tretola and T&T Gunnery

initiated a federal lawsuit of their own against the County and
its employees.

(Compl. ¶ 23.)

That suit ended in a jury trial

in Martin Tretola’s and T&T Gunnery’s favor.

(Compl. ¶ 23.)

The following facts are taken from Plaintiffs’ Complaint and
the documents attached thereto and are presumed to be true for
the purposes of this Memorandum and Order.
1

3

Plaintiffs

allege

that

Defendants

then

began

an

investigation into T&T Gunnery in 2010 in retaliation for the
prior

suit.

(Compl.

¶

24.)

Specifically,

Defendants

held

meetings and arranged to purchase semi-automatic rifles from T&T
Gunnery

and

other

stores

as

part

of

a

plan

to

prosecute

individuals and stores for selling rifles that were in violation
of

New

York

According
purchase

Penal

to

the

based

Law

Section

Complaint,

upon

265(22).

(Compl.

Defendants

selected

characteristics

alleged made the rifles illegal.

that

they

¶¶

25-26.)

rifles

to

erroneously

(Compl. ¶ 30.)

After the purchase of the rifles, “Defendants began to
modify,

alter,

deface

and

change

one,

some

or

all

of

the

purchased rifles to convert them from legal to illegal under
Penal Law § 265(22).”

(Compl. ¶ 34.)

Specifically, Defendants

used unknown tools to modify the rifles and alter them in such a
way as to display characteristics of an illegal weapon.
¶¶ 35-39.)

Although

particular

individuals

the

Complaint

who

does

modified

not

the

(Compl.

specify
weapons,

the
the

modifications and alterations were performed in the presence of
DeMaria and with the knowledge and/or instruction of Defendants.
(Compl. ¶¶ 42-43.)

These altered and modified semi-automatic

rifles were then used to acquire a search warrant.
¶ 50.)

4

(Compl.

On February 17, 2011, Defendants conducted a raid on
T&T Gunnery and seized semi-automatic rifles.
63.)

(Compl. ¶¶ 57,

That same day, Plaintiffs were arrested and ultimately

charged with multiple felonies and misdemeanors.

(Compl. ¶¶ 52-

55, 59.)

Martin Tretola and Thomas Tretola were barred from

purchasing

or

prosecution.
knowing

selling

guns

as

(Compl. ¶ 65.)

that

the

alleged

a

result

of

their

arrest

and

Plaintiffs allege that “[d]espite
illegal

conduct

engaged

in

by

Plaintiffs was entirely lawful and based upon doctored evidence,
all Defendants knowingly, willfully and intentionally initiated
criminal

proceedings

against

evidence

and

false

charges,

including

loss

of

distress.”

business

Plaintiffs

on

causing

opportunity

the

fabricated

Plaintiffs
and

severe

damages,
emotional

(Compl. ¶ 74.)
Defendants

(Compl. ¶ 75.)

presented

their

case

to

the

Grand

Jury.

In so doing, Defendants used altered rifles to

support their case and members of the County and some of the
individually named Defendants testified in front of the Grand
Jury.

(Compl. ¶¶ 76-77.)

charges.

The Grand Jury dismissed all of the

(Compl. ¶ 78.)
Plaintiffs

allege

the

following

claims:

(1)

false

arrest as against all Defendants; (2) malicious prosecution as
against

all

Defendants;

(3)

First

Amendment

retaliation

as

against all Defendants; (4) failure to supervise as against the
5

County; (5) failure to supervise as against D’Amico and Dewar;
(6)

Monell

liability

as

against

the

County

and

Rice;

(7)

violation of Plaintiffs’ Second Amendment rights as against all
Defendants; and (8) legal fees against all Defendants.
DISCUSSION
Both the State Defendants and the County Defendants
now

move

to

applicable
motions.

dismiss.

legal

The

standard

Court

before

will

turning

first
to

address

the

the

respective

Where appropriate, the Court will provide a singular

discussion of the motions and issues.
I. Legal Standard
In
Court

deciding

applies

a

Rule

12(b)(6)

“plausibility

“[t]wo working principles.”

motions

standard,”

to

which

dismiss,
is

guided

the
by

Ashcroft v. Iqbal, 556 U.S. 662,

678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); accord Harris v.
Mills, 572 F.3d 66, 71-72 (2d Cir. 2009).
Court

must

accept

“inapplicable

to

all

allegations

legal

as

First, although the

true,

conclusions;”

this

thus,

“tenet”

is

“[t]hreadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
accord Harris, 572 F.3d at 72.

Iqbal, 556 U.S. at 678;

Second, only complaints that

state a “plausible claim for relief” can survive a Rule 12(b)(6)
motion to dismiss.

Iqbal, 556 U.S. at 679.

Determining whether

a complaint does so is “a context-specific task that requires
6

the

reviewing

court

common sense.”

to

draw

on

its

judicial

experience

and

Id.; accord Harris, 572 F.3d at 72.

II. Analysis
The State and County Defendants move to dismiss on
several

grounds.

Notably,

both

motions

address

claims

that

Plaintiffs either do not intend to pursue, or did not raise in
the Complaint.

Some of these claims will be discussed infra.

At this juncture, though, the Court notes that Plaintiffs have
not

raised

Complaint.
38,

at

pursue

any

due

process

or

conspiracy

claims

in

the

(Pls.’ Opp. Br. to State Defs.’ Mot., Docket Entry

18.)

Moreover,

their

cause

currently pled.

of

Plaintiffs
action

concede

under

the

that

Second

they

cannot

Amendment

as

(Pls.’ Opp. Br. to State Defs.’ Mot. at 7-8;

Pls.’ Opp. Br. to County Defs.’ Mot., Docket Entry 36-2, at 15.)
Accordingly, the State and County Defendants’ respective motions
to

dismiss

Plaintiffs’

claim

for

violation

of

their

Second

Amendment rights is GRANTED, and such claim is DISMISSED WITHOUT
PREJUDICE.
The Court thus turns to the motions.
A. Immunity
Both the State and County Defendants move to dismiss
based

upon

immunity.

The

State

Defendants

assert

that

the

Eleventh Amendment bars Plaintiffs’ claims against the State,
the New York State Police, and the individual State Defendants
7

sued in their official capacities.

Like some of the claims just

mentioned, however, Plaintiffs are not bringing such claims and
any

allegations

against

the

individual

State

Defendants

against them in their individual capacities only.
to State Defs.’ Mot. at 17.)

are

(Pls.’ Opp.

Accordingly, the Court will not

address this argument further as it is inapplicable to the case
at bar.
Similarly, though, the County Defendants assert that
they are entitled to absolute prosecutorial immunity.
Defs.’ Br., Docket Entry 23-1, at 4-10.)

(County

Absolute immunity

extends to claims against government officials in their official
capacities

that

arise

out

of

their

“analogous to those of a prosecutor.”

performing

functions

Butz v. Economou, 438

U.S. 478, 515, 98 S. Ct. 2894, 2915, 57 L. Ed. 2d 895 (1978);
see also Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010).

In

determining whether a government official is immune from suit,
“the courts are to apply a ‘functional approach,’ examining ‘the
nature of the function performed, not the identity of the actor
who performed it.’”

Doe v. Phillips, 81 F.3d 1204, 1209 (2d

Cir. 1996) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 269,
113 S. Ct. 2606, 125 L. Ed. 2d 209) (1993)).
In other words, “when a prosecutor functions as an
administrator . . . [or] performs the investigative functions
normally

performed

by

a

detective
8

or

police

officer,

he

is

eligible only for qualified immunity.”
F.3d

91,

94

(2d

Cir.

1998)

Smith v. Garretto, 147

(internal

quotation

citation omitted) (alterations in original).

marks

and

The Supreme Court

has held, for example, that the filing of a criminal complaint
is entitled to absolute immunity, see Imbler v. Pachtman, 424
U.S. 409, 431, 96 S. Ct. 984, 995, 47 L. Ed. 2d 128 (1976); see
also Barr v. Abrams, 810 F.2d 358, 362 (2d Cir. 1987), whereas
absolute

immunity

does

not

extend

to

functions

that

are

typically performed by police officers or investigative agents,
see, e.g., Kalina v. Fletcher, 522 U.S. 118, 129-30, 118 S. Ct.
502, 509, 139 L. Ed. 2d 471 (1997) (holding that a prosecutor
was not entitled to prosecutorial immunity for a sworn affidavit
filed

in

because

support
the

of

an

prosecutor

application
was

for

“perform[ing]

an
an

arrest
act

warrant,
that

any

competent witness might have performed”); Burns v. Reed, 500
U.S. 478, 493, 111 S. Ct. 1934, 1943, 114 L. Ed. 2d 547 (1991)
(stating that a prosecutor was not entitled to prosecutorial
immunity for advising the police in the investigative phase of a
criminal case).
Here,
functions.

the

County

Defendants

performed

several

See East Coast Novelty Co., Inc. v. City of N.Y.,

809 F. Supp. 285, 291-92 (S.D.N.Y. 1992) (delineating between
different functions of the defendants).
Plaintiffs

lodge

a

malicious

For example, insofar as

prosecution
9

claim

against

the

County Defendants, it is apparent that the County Defendants are
entitled to absolute immunity in that regard.
clear

that

the

decision

whether

to

Courts have made

commence

or

continue

a

prosecution is made solely within the prosecutorial function and
therefore is protected by absolute immunity.

See, e.g., Shmueli

v. City of N.Y., 424 F.3d 231, 236 (2d Cir. 2005) (noting that a
prosecutor who pursues a criminal prosecution is immune from a
Section 1983 suit); Fox v. City of N.Y., No. 03-CV-2268, 2004 WL
856299,

at

*11
claim

prosecution

(S.D.N.Y.
against

Apr.

20,

[defendant]

2004)
also

(“The
must

malicious

be

dismissed

because ‘[a] prosecutor has absolute immunity in connection with
the

decision

Covington
1996)).

v.

whether
City

of

to

commence

N.Y.,

916

F.

prosecution.’”
Supp.

282,

287

(quoting
(S.D.N.Y.

Accordingly here, the County Defendants are entitled to

absolute immunity for their actions in prosecuting Plaintiffs,
including

the

Grand

Jury

proceedings.

As

such,

the

County

Defendants’ motion to dismiss Plaintiffs’ malicious prosecution
claim against them is GRANTED, and such claim is DISMISSED WITH
PREJUDICE.
As to Plaintiffs’ additional claims against the County
Defendants, however, it is not clear what function the County
Defendants

played,

and

the

Court

therefore

cannot

determine

whether they are entitled to absolute immunity at this stage.
For example, it is not apparent what role, if any, the County
10

Defendants played in Plaintiffs’ arrest.

Likely, the County

Defendants were not involved in the arrest at all.

See Fox,

2004 WL 856299, at *11 (“It is, of course, highly doubtful that
[defendant], who heads one of the largest prosecutorial offices
in the nation, played any role in the run-of-the-mill arrests at
issue in this case.”).

Moreover, while it seems that the County

Defendants would not be entitled to absolute immunity for the
roles they played in the investigation, the Complaint does not
provide enough detail for the Court to definitively come to such
a conclusion.2

See Smith, 147 F.3d at 94 (citing planning and

executing a raid as an example of activity that is not entitled
to absolute immunity).
dismiss

based

on

Thus, the County Defendants’ motion to

absolute

immunity

is

GRANTED

only

as

to

Plaintiffs’ claim against them for malicious prosecution; it is
otherwise DENIED in this regard.
B. First Amendment Retaliation
The State and County Defendants also respectively move
to dismiss Plaintiffs’ claim for First Amendment retaliation,
arguing, inter alia, that Plaintiffs have failed to state a
claim.3

The Court disagrees.

Although the County Defendants may be entitled to qualified
immunity, even if absolute immunity does not apply, they have
not moved on this ground.
2

The County Defendants also assert that they are entitled to
absolute immunity on Plaintiffs’ First Amendment retaliation
3

11

Generally,

a

private

citizen

bringing

a

First

Amendment retaliation claim must allege that “(1) he has an
interest

protected

by

the

First

Amendment;

(2)

defendants’

actions were motivated or substantially caused by his exercise
of that right; and (3) defendants’ action effectively chilled
the exercise of his First Amendment right.”
Suffern, 268 F.3d 65, 73 (2d Cir. 2001).
County

Defendants

primarily

argue

that

Curley v. Vill. of
Here, the State and

Plaintiffs

have

not

sufficiently alleged any “actual chill.”
However,
retaliation
certain

claim,

cases

despite
the

the

elements

Second

involving

Circuit

public

of
has

a

First
noted

Amendment
that

official/private

“‘in

citizen

retaliation claims’--the context most applicable to this case-it has ‘seemingly not imposed a subjective chill requirement
where some other harm is asserted.’”

Soundview Assocs. v. Town

of Riverhead, 973 F. Supp. 2d 275, 295 (E.D.N.Y. 2013) (quoting
Gill v. Pidlypchak, 389 F.3d 379, 383 (2d Cir. 2004)).

For

example, where a plaintiff can allege a non-speech injury, such
as noise pollution, the Second Circuit has held that proof of a
chill is unnecessary.

See Gagliardi v. Vill. of Pawling, 18

F.3d 188, 190 (2d Cir. 1994); see also Schubert v. City of Rye,
claim. (County Defs.’ Br. at 17-18.) However, to the extent
that Plaintiffs claim that the County Defendants retaliated
against them due to their involvement in the investigation and
other such functions, the County Defendants are not entitled to
absolute immunity.
12

775 F. Supp. 2d 689, 711-12 (S.D.N.Y. 2011) (finding that the
plaintiffs

“need

not

demonstrate

actual

chilling

of

speech”

because they alleged retaliatory failure to enforce local landuse regulations and correct property damage).
Here, Plaintiffs--at least plausibly--allege a harm to
the business.

Specifically, they allege that Martin and Thomas

Tretola were barred from purchasing or selling guns as a result
of their arrests and prosecutions.

(See Compl. ¶ 65.)

Neither

the

identify

in

parties

Circuit

nor

the

Court

specifically

sufficient
however,

to

not

precedent.

Cf.

5366371,

*8

at

finding

overcome

does

could
that

harm

subjective

appear

Brink

v.

(S.D.N.Y.

to

be

to

chill.

No.

25,

cases

a

a

is

finding,

with

11-CV-4306,

2013)

the

business

Such

inconsistent

Muscente,
Sept.

any

(finding

Circuit
2013
that

WL
the

plaintiff’s allegation of retaliatory criminal prosecutions was
sufficient); Delarosa v. U.S., No. 11-CV-0368, 2013 WL 2295665,
at *8 (N.D.N.Y. May 24, 2013) (Plaintiff does not “appear to
allege concrete harm, unless she can show a tangible injury to
some interest she holds in the store, arising from conduct by
[defendants]
statements.”
N.Y.,

916

Plaintiff
Defendants’

in

retaliation

(emphasis

F.

Supp.

has

for

added));

2d

alleged

retaliatory

404,

her

Vaher

431-32

v.

September
Town

(S.D.N.Y.

various

injuries

conduct,

including

13

of

20,

2010

Orangetown,

2013)

(“Here,

resulting
harm

to

from
his

professional

reputation,

responsibilities,

temporary

further

modifications

harassment

his

job

intimidation

and

of

by

Defendants and economic and pecuniary loss.”); Pflaum v. Town of
Stuyvesant, 937 F. Supp. 2d 289, 308 (N.D.N.Y. 2013) (denying a
motion to dismiss where the plaintiff alleged “the loss of his
business

permit,

income”).

and

consequently,

the

loss

of

business

Accordingly, the Court finds that Plaintiffs have

alleged enough to pursue their First Amendment retaliation claim
against the State and County Defendants.
The

State

Defendants--and

to

a

certain

extent,

the

County Defendants--additionally assert that Plaintiffs have not
sufficiently
their

alleged

nexus

Amendment

First

a

right

subsequent

harm.

Plaintiffs

have

between
and

Defendants
not

alleged

Plaintiffs’

the

seem
that

exercise

investigation
to

be

or

asserting

Defendants’

of
any

that

actions

were

substantially motivated by Plaintiffs’ speech in bringing the
2007

action

against

the

County.

The

Court

agrees

that

the

connection between Plaintiffs’ prior action against the County
and its employees presents a somewhat tenuous connection as it
pertains to the State Defendants.
alleged

that,

following

that

Nonetheless, Plaintiffs have

action,

the

State

and

County

Defendants essentially began an investigation and a campaign to
target the business as a form of retribution.
as

defendants’

motivation]

are
14

required

only

“[M]atters [such
to

be

‘averred

generally’

in

specificity.”

a

complaint,

and

need

not

be

pled

with

Puckett v. City of Glen Cove, 631 F. Supp. 2d

226, 240-41 (E.D.N.Y. 2009).

Indeed, alleging motivation with

specificity would be difficult.

See Gagliardi, 18 F.3d at 195.

Accordingly, the State Defendants’ motion to dismiss the First
Amendment

retaliation

claim

on

this

ground--and

the

County

Defendants’ motion to the extent that they raise this issue--is
DENIED.
C. False Arrest
Next, the State Defendants move to dismiss Plaintiffs’
false arrest claims, primarily on the grounds that they had
probable cause to arrest due to a warrant and they are protected
by

qualified

Complaint

immunity.4

alleges

a

The

false

Court

arrest

disagrees.
claim

against

Although
the

the

County

Defendants as well, the County Defendants have not argued for
dismissal of the false arrest claim specifically.
1. Probable Cause
It

is

well

established

that

“‘[t]here

can

be

no

federal civil rights claim for false arrest where the arresting
officer had probable cause.’”

Williams v. Town of Greenburgh,

535 F.3d 71, 78-79 (2d Cir. 2008) (quoting Singer v. Fulton
The State Defendants also raise issues regarding personal
involvement in connection with the false arrest claim. (State
Defs.’ Br., Docket Entry 22-3, at 11-12.) The Court will
address these arguments in the failure to supervise section
infra.
4

15

Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995)).

Thus, “[w]here

an arrest is made pursuant to a warrant, there can be no claim
for false arrest or unlawful imprisonment.”
F. Supp. 783, 788 (S.D.N.Y. 1997).

Jones v. Trump, 971

“‘Normally, the issuance of

a warrant by a neutral magistrate, which depends on a finding of
probable cause, creates a presumption that it was objectively
reasonable for the officers to believe that there was probable
cause.’”

Quinoy v. Pena, No. 13-CV-1945, 2014 WL 1998239, at *8

(S.D.N.Y. May 14, 2014) (quoting Golino v. City of New Haven,
950 F.2d 864, 870 (2d Cir. 1991)).
Here,

though,

the

State

Defendants

rely

on

the

presence of a search warrant to argue that there was probable
cause to arrest.

A search warrant does not create probable

cause to arrest.

See Kamara v. City of N.Y., No. 03-CV-0337,

2005 WL 3113423, at *5 (E.D.N.Y. Nov. 21, 2005) (“This argument
fails . . . because although a valid warrant existed in the
present case, the warrant was a search warrant, not an arrest
warrant . . . .” (emphasis in original)).
somewhat

vague

as

to

the

exact

The Complaint here is

sequence

of

events.

It

is

possible that, upon conducting the search, the State Defendants
discovered “‘confirmatory’ merchandise” and had probable cause
to arrest.

See 5 Borough Pawn, LLC. v. Marti, 753 F. Supp. 2d

186, 198 (S.D.N.Y. 2010).
only

that

the

search

However, the State Defendants assert

warrant
16

“broke

the

causal

link”

and

Plaintiffs

allege

merchandise.”

that

there,

in

fact,

was

no

(See State Defs.’ Br. at 13.)

“confirmatory
Thus, at this

stage, given that a search warrant alone does not equate to
probable cause to arrest, the State Defendants’ motion in this
regard is DENIED.
2. Qualified Immunity
However, the State Defendants also argue that they are
entitled
claim.

to

qualified

Even

if

a

immunity

defendant

on

Plaintiffs’

arrested

a

false

plaintiff

arrest

without

a

warrant and without probable cause, a defendant is entitled to
qualified
arrest.
2007);

immunity

if

there

is

“arguable

probable

cause”

to

See Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir.
Escalera

“Arguable

v.

Lunn,

probable

361

cause

F.3d

737,
‘if

exists

743

(2d

either

Cir.
(a)

2004).
it

was

objectively reasonable for the officer to believe that probable
cause existed, or (b) officers of reasonable competence could
disagree

on

whether

the

probable

cause

test

was

met.’”

Escalera, 361 F.3d at 743 (quoting Golino, 950 F.2d at 870); see
also

Cerrone

(“Arguable
officer
knowledge
believed

v.

Brown,

probable

in

the

as
that

the

246

cause

same

exists

194,

in

cause

a

and

question
existed

17

202-03

‘when

circumstances

officer

probable

F.3d

(2d

Cir.

reasonable

possessing
could

in

the

have

2001)
police

the

same

reasonably

light

of

well

established law.’”

(quoting Lee v. Sandberg, 136 F.3d 94, 102

(2d Cir. 1997) (emphasis in original)).
The State Defendants assert that “since there was a
search warrant in place, a reasonable officer standing in the
shoes of [the] State Defendants could have believed that there
was probable cause for the arrest.”

(State Defs.’ Br. at 14.)

However,

search

as

previously

stated,

a

warrant

does

not

necessarily indicate any probable cause to arrest, see supra p.
16, even though it may suggest some objective reasonableness,
see Seitz v. DeQuarto, 777 F. Supp. 2d 492, 503 (S.D.N.Y. 2011).
Furthermore,

Plaintiffs

allege

that

Defendants

obtained

the

search warrant through modifying what were previously legal guns
in

order

to

evidence.
believe

make

(See

that

he

them

Compl.
had

currently alleged.
Plaintiffs’

illegal,

thus

¶

No

50.)

probable

cause

essentially
reasonable
in

such

a

fabricating

officer

could

situation

as

Of course, the evidence may reveal that

allegations

are

meritless

and

that

Defendants

appropriately believed that the guns were illegal and that they
did not modify any weapons.

At this stage, the Court cannot say

definitively that the State Defendants are entitled to qualified
immunity.
5963080,
dismiss

See Kanciper v. Lato, --- F. Supp. 2d ----, 2013 WL
at
on

*11

(E.D.N.Y.

qualified

Nov.

immunity

7,

2013)

grounds

(denying
where

the

motion

to

plaintiff

alleged, inter alia, that the defendant obtained search warrants
18

without authority); Anilao v. Spota, 774 F. Supp. 2d 457, 492-93
(E.D.N.Y. 2011) (holding that the court was unable to decide
qualified

immunity

where

the

plaintiffs

had

alleged

that

defendants fabricated evidence and prosecuted plaintiffs knowing
that they had not committed a crime).

Therefore, their motion

to dismiss on this ground is DENIED.
D. Malicious Prosecution
The Court has already found that the County Defendants
are

entitled

to

absolute

immunity

prosecution claim against them.

on

Plaintiffs’

malicious

As to the State Defendants,

they argue that there is no causal connection between the State
Defendants’ conduct and Plaintiffs’ injury.
at 12.)

(State Defs.’ Br.

The Court disagrees.
To succeed on a claim for malicious prosecution under

Section 1983, Plaintiffs must show: (1) Defendants initiated a
criminal proceeding against them, (2) Defendants lacked probable
cause to believe that the proceeding could succeed, (3) the
criminal

proceeding

was

instituted

in

malice,

and

criminal proceeding terminated in Plaintiffs’ favor.

(4)

the

See Cook

v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994); see also Boyd v. City
of N.Y., 336 F.3d 72, 75 (2d Cir. 2003).
assert

that

the

Complaint

fails

to

The State Defendants

allege

that

the

State

Defendants were involved in, or had any influence over, the
prosecution process or whether to grant individuals other than
19

Plaintiffs
(“ACOD”).

an

Adjournment

in

Contemplation

(State Defs.’ Br. at 13.)

of

Dismissal

Thus, they essentially

seem to challenge the first element of a malicious prosecution
claim.
“In

malicious

prosecution

cases

against

police

officers, plaintiffs have met this first element by showing that
officers brought formal charges and had the person arraigned, or
filled out complaining and corroborating affidavits, or swore to
and signed a felony complaint.”

Llerando-Phipps v. City of

N.Y., 390 F. Supp. 2d 372, 382-83 (S.D.N.Y. 2005) (internal
citations

omitted).

Here,

Plaintiffs

have

alleged

that

“Defendants,” using that term as against both the State and
County

Defendants,

filed

sworn

felony

complaints

against

Plaintiffs (Compl. ¶¶ 100-03) and altered evidence to create
illegal
Either

weapons
theory

(Compl.
presents

¶¶
the

33-50),

amongst

requisite

other

initiation

proceedings and, thus, the “causal connection.”

activities.
of

criminal

See Felmine v.

City of N.Y., No. 09-CV-3768, 2011 WL 4543268, at *11 (E.D.N.Y.
Sept. 29, 2011) (finding that allegation that officer signed the
sworn criminal court complaint was sufficient to survive summary
judgment against malicious prosecution claim); Llerando-Phipps,
390 F. Supp. 2d at 383 (“‘[A]n arresting officer may be held
liable for malicious prosecution when a police officer creates
false

information

likely

to

influence
20

a

jury’s

decision

and

forwards that information to prosecutors.’” (quoting Brome v.
City of N.Y., No. 02-CV-7184, 2004 WL 502645, at *5-6 (S.D.N.Y.
Mar. 15, 2004)); Cox v. Cnty. of Suffolk, 827 F. Supp. 935, 938
(E.D.N.Y. 1993) (allegation that police officer defendant swore
to and subscribed a felony complaint was sufficient to show
initiation of criminal proceedings).

In particular, Plaintiffs

allege that the gun modification occurred in the presence of
State Defendant DeMaria (Compl. ¶ 42) in order to support a
prosecution (Compl. ¶ 48).

Such allegations, though minimal,

are sufficient at this stage.
As the State Defendants have not otherwise challenged
the malicious prosecution claim, their motion to dismiss in this
regard is DENIED.
E. Failure to Supervise and Municipal Liability
1. Failure to Supervise
Plaintiffs allege failure to supervise claims against
State

Defendants

D’Amico

and

Dewar

as

well

as

against

the

County.
Although “‘[i]t is well settled in this Circuit that
personal

involvement

of

defendants

in

alleged

constitutional

deprivations is a prerequisite to an award of damages under
§ 1983,’” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)
(quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994));
Iqbal, 556 U.S. at 676 (“[A] plaintiff must plead that each
21

Government-official

defendant,

through

individual

actions,

has

violated

supervisory

official

can

nonetheless

the

the

official’s

own

Constitution.”),

be

held

liable

a

if

he

“participated directly in the alleged constitutional violation
[or] . . . created

a

policy

or

custom

under

which

[the]

unconstitutional practices occurred, or allowed the continuance
of such a policy or custom,” Colon, 58 F.3d at 873.

Notably,

the Second Circuit in Colon listed five ways that a plaintiff
can

establish

liability--not

just

the

two

listed--including

failure to remedy a wrong after being informed of the violation,
grossly negligent supervision of subordinates who committed the
wrongful

acts,

inmates.

58 F.3d at 873.

these

and

additional

deliberate

methods

indifference

to

the

rights

of

However, the “continuing vitality” of
has

“engendered

conflict

within

Circuit” due to the Supreme Court’s decision in Iqbal.
v. Barrett, 685 F.3d 193, 205 n.14 (2d Cir. 2012).

our

Reynolds

This Court

has concluded that only personal involvement and a custom or
practice survive as viable bases for supervisory liability.

See

Butler v. Suffolk Cnty., 289 F.R.D. 80, 95 n.8 (E.D.N.Y. 2013).
As

to

D’Amico

and

Dewar,

the

Complaint

appears

to

allege two bases for supervisory liability: (1) that D’Amico and
Dewar were aware of the constitutional violations but failed to
take action, and (2) it was the policy, custom, and practice of
D’Amico and Dewar to allow or ignore violations of the Second,
22

Fourth, Fifth, and Fourteenth Amendments.
46, 156.)

(See Compl. ¶¶ 144-

Neither theory saves them from the State Defendants’

motion to dismiss.

First, as previously stated, failure to

remedy a wrong after being informed of the violation has been
rejected by this Court as a viable theory after Iqbal.

See

supra p. 22.
Second, Plaintiffs’ allegations of a policy or custom
on the part of D’Amico and Dewar are conclusory at best.
Complaint

recites

boilerplate

language

regarding

a

The

policy

custom, but provides no factual allegations in support.
Roberites

v.

Huff,

No.

11-CV-0521,

2012

WL

1113479,

or
See

at

*7

(W.D.N.Y. Mar. 30, 2012) (“Mere boilerplate assertions that a
municipality has such a custom or policy, which resulted in a
deprivation of the plaintiff’s rights, do not rise to the level
of

plausibility.”

(internal

quotation

marks

and

citation

omitted)); Zembiec v. Cnty. of Monroe, 766 F. Supp. 2d 484, 498
(W.D.N.Y. 2011) (finding conclusory allegations without factual
support

to

businesses,

be
and

investigation,

insufficient).
perhaps
the

While

individuals,

Complaint

unconstitutional

acts

currently

drafted,

Complaint

constitutional

violations

who

contains

particular

the

it

to

part

other
of

regarding

against

merely

them.

discusses

Plaintiffs,

insufficient to assert a policy or custom.
23

were

little

committed

against

alludes

which

an
the
As
the
is

While these are the only two theories explicitly set
forth in the section of the Complaint addressing Plaintiffs’
supervisory liability claim against D’Amico and Dewar, parts of
the

Complaint

also

D’Amico and Dewar.
deficient.

The

discuss

potential

personal

involvement

by

Again, however, Plaintiffs’ allegations are

Complaint,

at

best,

involved in the investigation.

asserts

that

(Compl. ¶ 24.)

Dewar

was

It does not

identify D’Amico or Dewar as modifying or altering any weapons,
participating in the arrest, participating in the prosecution,
or performing any other acts that would specifically connect
their

personal

involvement

to

a

constitutional

violation.

Accordingly, the State Defendants’ motion to dismiss Plaintiffs’
supervisory liability claim against D’Amico and Dewar is GRANTED
and such claim is DISMISSED WITHOUT PREJUDICE.
Similarly, Plaintiffs allege a supervisory liability
claim against the County.
County

failed

to

The Complaint alleges that: (1) the

supervise

and/or

train

Rice

and

her

subordinates (Compl. ¶¶ 130, 135), (2) the County and Rice were
aware of fabricated evidence and false statements but failed to
remedy the situation (Compl. ¶¶ 131-32), and (3) the County and
Rice had a policy, practice, and custom of allowing or ignoring
violations

of

the

Second,

Amendments (Compl. ¶¶ 133-34).

Fourth,

Fifth,

and

Fourteenth

As already stated, awareness and

failure to remedy is not a viable theory.
24

See supra p. 22.

Likewise,

deficient

supervision

or

training

falls

within

the

deliberate indifference Colon factor, which this Court has also
rejected.

See Vazquez-Mentado v. Buitron, --- F. Supp. 2d ----,

2014 WL 318329, at *5 (N.D.N.Y. Jan. 29, 2014) (“Claims premised
on

putatively

deficient

supervision

and/or

training

are

generally analyzed pursuant to the deliberate indifference Colon
factor.”).
Moreover,

like

the

policy

and

custom

allegations

against D’Amico and Dewar, Plaintiffs’ allegations as to the
County are equally conclusory and lack factual support.

What is

more, Rice’s personal involvement, if any, is lacking as--like
Dewar--the Complaint specifies only that she was involved in the
investigation.
Plaintiffs’

(Compl. ¶ 24.)

supervisory

Thus, for the same reasons that

liability

claim

against

D’Amico

and

Dewar fails, Plaintiffs’ supervisory liability claim against the
County fails as well.
2. Monell Liability
Finally, Plaintiffs also assert a claim against the
County for Monell liability.
A

municipality

such

as

the

County

cannot

be

held

liable under Section 1983 on a respondeat superior theory.

See

Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658,
691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978); Roe v. City
of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008).
25

To prevail on a

Section 1983 claim against a municipality, a plaintiff must show
“that ‘action pursuant to official municipal policy’ caused the
alleged constitutional injury.”

Cash v. Cnty. of Erie, 654 F.3d

324, 333 (2d Cir. 2011) (quoting Connick v. Thompson, --- U.S. ---, 131 S. Ct. 1350, 1359, 179 L. Ed. 2d 417 (2011)), cert.
denied, --- U.S. ----, 132 S. Ct. 1741, 182 L. Ed. 2d 528
(2012); see also Monell, 436 U.S. at 690-91.

“Local governing

bodies . . . may be sued for constitutional deprivations visited
pursuant to governmental ‘custom’ even though such a custom has
not

received

formal

approval

decisionmaking channels.”

through

the

body’s

official

Monell, 436 U.S. at 690-91 (internal

citations omitted).
Supervisory

liability

independent concepts.
WL

1414441,

at

*4

and

Monell

liability

are

See Kucera v. Tkac, No. 12-CV-0264, 2013
(D.

Vt.

Apr.

8,

2013).

Nonetheless,

Plaintiffs’ claim against the County pursuant to Monell fails
because,

like

the

supervisory

liability

claim,

the

does not sufficiently allege any custom or policy.
portions
liability

of

the

Complaint,

conclusorily

the

states

section

that

regarding

“[t]he

COUNTY

Complaint
Like other
municipal
and

RICE

officially adopted or promulgated a policy to enforce laws by
the COUNTY where gun store owners and employees in Nassau County
were

harassed

investigation.”

for

lawful

conduct

(Compl. ¶ 167.)
26

during

a

10

month

probing

Plaintiffs also allege that

“[u]pon information and belief, the NCDAO and NYSPD created an
inter-governmental agency custom or practice where they raided
local

gun

stores

and

arrested

owners

and

employees

without

probable cause or valid arrest warrants in violation of their
civil rights.”
implies

that

(Compl. ¶ 169.)
others

were

Once again, while the Complaint

involved

in

the

investigation,

and

indicates that others received an ACOD, it does not contain
enough to sufficiently state a policy or custom.

Accordingly,

the County Defendants’ motion to dismiss the Monell claim is
GRANTED, and such claim is DISMISSED WITHOUT PREJUDICE.
III. Leave to Replead
Finally, although Plaintiffs have not requested leave
to replead, courts should grant leave to amend “when justice so
requires.”

FED. R. CIV. P. 15(a)(2).

Leave to amend should be

granted unless there is evidence of undue delay, bad faith,
undue prejudice to the non-movant, or futility.
Rust–Oleum

Corp.,

244

F.3d

104,

110

(2d

See Milanese v.

Cir.

2001).

To

determine whether an amended claim is futile, courts analyze
whether

the

proposed

pleading

would

withstand

a

motion

dismiss under Federal Rule of Civil Procedure 12(b)(6).

to
See

Dougherty v. Town of N. Hempstead Bd. of Zoning Appeal, 282 F.3d
83, 88 (2d Cir. 2002).
As to Plaintiffs’ claims that were dismissed without
prejudice, the Court finds that Plaintiffs could plausibly state
27

a claim.

If Plaintiffs intend to file an Amended Complaint,

they must do so within thirty (30) days of the date of this
Memorandum and Order.

If they do not do so, only the claims

that have survived the pending motions addressed herein will
continue.
CONCLUSION
For
motion

to

the

foregoing

dismiss

is

reasons,

GRANTED

IN

the

PART

State

and

Defendants’

DENIED

IN

PART.

Likewise, the County Defendants’ motion to dismiss is GRANTED IN
PART

and

DENIED

IN

Plaintiffs’

claims

rights

for

and

DISMISSED

PART.
for

Both

violation

supervisory

WITHOUT

motions
of

their

liability,

PREJUDICE.

are

In

and

GRANTED

Second
such

addition,

as

to

Amendment
claims

the

are

County

Defendant’s motion to dismiss the claim for Monell liability is
also

GRANTED,

and

that

claim

is

also

DISMISSED

WITHOUT

PREJUDICE.

Finally, the County Defendants’ motion to dismiss

Plaintiffs’

malicious

prosecution

claim is DISMISSED WITH PREJUDICE.

claim

is

GRANTED,

and

that

Both motions are otherwise

DENIED.
As to those claims that have been dismissed without
prejudice, Plaintiffs are GRANTED leave to replead.

If they

choose to do so, they must file an Amended Complaint within
thirty

(30)

days

of

the

date

of

this

Memorandum

and

Order.

Failure to do so will mean that these claims will be dismissed
28

with prejudice and only the claims surviving this Memorandum and
Order will proceed.
Finally, the County Defendants’ additional motion to
dismiss is DENIED AS MOOT given that it is duplicative of the
first motion.
SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

July
1 , 2014
Central Islip, NY

29