Bristol et al v. Probation Department of Nassau County et al
Filing
37
ORDER granting in part and denying in part 27 Motion for Judgment on the Pleadings; granting 29 Motion to Withdraw. For the reasons set forth herein, defendants' motion for judgment on the pleadings is granted in part, and denied in part. Defendants' motion is granted as to plaintiff's claims alleging a violation of his double jeopardy right, due process right regarding his remand to NCCC, and due process right regarding the alleged seizure of his personal property and mon ey in 2009. However, defendants' motion is denied as to plaintiff's due process claim regarding the alleged refusal to return his funds in 2013, and his conditions of confinement claim. All claims against former District Attorney Rice, Det ective John, Detective Schepis, ADA Huggard, and ADA Doddato are dismissed. Additionally, plaintiff's motion voluntarily withdrawing his claims against the Nassau County Department of Probation and Nassau County District Attorney's Office, and requesting that the caption be amended to substitute Edward Schenk for defendant Sthen Thibault is granted. The Clerk of the Court shall amend the caption accordingly. Ordered by Judge Joseph F. Bianco on 3/8/2016. (Dolecki, Lauren)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 14-CV-6647 (JFB)(AKT)
_____________________
MARCEL C. BRISTOL,
Plaintiff,
VERSUS
PROBATION DEPARTMENT OF NASSAU COUNTY ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
March 8, 2016
___________________
JOSEPH F. BIANCO, District Judge:
(“Schenk,” sued herein as Sthen Thibault,
Attorney and Legal Advisor for the Nassau
County Department of Probation), Harvey
John, Detective of Nassau County
(“Detective John”), Ronald S. Schepis,
Detective of Nassau County (“Detective
Schepis”), ADA Anne M. Huggard (“ADA
Huggard”), and Former ADA Lauren
Doddato (“ADA Doddato”), (collectively,
“defendants”). 1 Plaintiff alleges that the
On November 10, 2014, plaintiff Marcel
C. Bristol (“Bristol” or “plaintiff”),
proceeding pro se and in forma pauperis,
filed this action against defendants Probation
Department of Nassau County, Nassau
County’s District Attorney’s Office, former
District Attorney Kathleen Rice (“former
District Attorney Rice”), Ed Schenk
Nassau County District Attorney’s Office with
prejudice “[b]ecause the District Attorney’s Office is
not an entity capable of being sued”); Ceparano v.
Suffolk Cty., No. 10-CV-2030 (SJF)(ATK), 2010 WL
5437212, at *6 (E.D.N.Y. Dec. 15, 2010) (dismissing
claims against Suffolk County District Attorney’s
Office and Suffolk County Probation Department
because they are “administrative arms of the
municipality and therefore lack the capacity to be
sued.”). Thus, plaintiff’s motion to voluntarily
withdraw his claims against the Nassau County
Department of Probation and Nassau County District
Attorney’s Office is granted. In his letter motion,
plaintiff also requested that the “name Sthen Thibault
A/K/A Thibault Sthenk be stricken from the caption of
1
On July 13, 2015, plaintiff filed a letter motion
voluntarily withdrawing his claims against the
Probation Department of Nassau County and Nassau
County District Attorney’s Office “inasmuch as they
are not a suiable (sic) entity.” (Dkt. No. 29.) It is
correct that both of these entities are “administrative
arms” of a municipality, Nassau County, and
accordingly, cannot be sued. See, e.g., David v.
Lynbrook Police Dep’t, 224 F. Supp. 2d 463, 477
(E.D.N.Y. 2002) (“Under New York law, departments
that are merely administrative arms of a municipality
do not have a legal identity separate and apart from the
municipality and, therefore, cannot sue or be sued.”);
Miller v. Nassau Cty. Dist. Attorney’s Office, No. 09CV-2819 (JS)(WDW), 2009 WL 5218606, at *3
(E.D.N.Y. Dec. 28, 2009) (dismissing claims against
1
defendants deprived him of his right not to be
punished twice for the same offense under the
Fifth and Fourteenth Amendments, his right
not to be seized and imprisoned without due
process of law under the Fourth, Fifth, and
Fourteenth Amendments, his right not to be
deprived of liberty and property without due
process of law under the Fourth, Fifth, and
Fourteenth Amendments, and his right
against cruel and unusual treatment under the
Fourth, Eighth, and Fourteenth Amendments.
facts to be true and, for purposes of the
pending motion for judgment on the
pleadings, will construe them in a light most
favorable to the plaintiff, the non-moving
party.
Plaintiff alleges that, on or about January
4, 2008, Detectives John and Schepis arrested
plaintiff without a warrant, and illegally
seized $4,915.00 and other personal property
from plaintiff, incident to the arrest. (Compl.
¶ 5.) Plaintiff claims that, contrary to
required law and the Nassau County Police
Department’s own regulation, Detectives
John and Schepis failed to voucher the seized
currency or record plaintiff’s personal
property. (Id. at ¶ 6.) Plaintiff alleges that,
although “there has never been a valid charge
or a valid judgment linking the U.S. currency
to a felony” or “judgment pursuant to Art. 13A of the CPLR of The State of New York
authorizing the forfeiture of the money,”
“despite all efforts, they still refused to return
the money to plaintiff.” (Id.)
Defendants now move for judgment on
the pleadings, pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure, on the
grounds that (1) plaintiff’s § 1983 claims are
barred by probable cause and the statute of
limitations; (2) plaintiff’s claims against
former District Attorney Rice, ADA
Huggard, and ADA Doddato are without
merit because they have absolute immunity,
and further, Rice had no personal
involvement in the matter; (3) the Nassau
County Attorney’s Office and the Probation
Department of Nassau County cannot be
sued; (4) plaintiff’s restitution funds were
properly disbursed pursuant to a court order;
(5) plaintiff’s conditions of confinement
claims do not rise to the level of a
constitutional violation; and (6) the
defendants are entitled to qualified immunity.
Plaintiff alleges that, on or about
September 30, 2009, former District Attorney
Rice and ADA Huggard “in a ruse to
legitimize the seizure of the $4,915.00 from
plaintiff, prepared a letter entitled Rice v.
Marcel C. Brisol, seeking to entice plaintiff
to a fake settlement.” (Id. at ¶ 7.) Plaintiff
alleges that former District Attorney Rice and
ADA Huggard “[k]new well that they had no
authority to withhold the U.S.’ (sic) currency
from plaintiff. The contents of the letter are
completely false, intimidating and deceptive,
tailored to coerce threaten and extort property
from plaintiff, using fraudulently the United
States Mails Service.” (Id.) Plaintiff alleges
that his only conviction in Nassau County
was by a jury trial on September 17, 2009,
and “has no relation to the U.S. currency; and
For the reasons discussed below, the
defendants’ motion is granted in part, and
denied in part.
I. BACKGROUND
A. Facts
The following facts are taken from the
complaint filed on November 10, 2014,
(Compl.) and are not findings of fact by the
Court. Instead, the Court will assume the
the case and the body of the complaint thereof, and be
substituted with the correct defendant, namely Edward
Schenk.” (Dkt. No. 29.) Plaintiff’s request is granted.
2
has since been reversed and vacated on direct
appeal . . . leaving them no choice but to
return the property.” (Id.) Plaintiff alleges
that “to date, there has never been any
forfeiture action or Judgment against [him].”
(Id.)
sewage system with back up fecal material in
the cell and they provided no glove to clean
and deal with the situation,” that “all the
pipes are rusty,” and that there was “no soap
to clean the toilettes.” (Id.) Plaintiff alleges
that, as a result, he “caught a fungus infection
in his left big toe.” (Id.) Plaintiff further
claims that “the whole place was filthy,
infested with rodents [and] insects and the
odor was noxious at all times; and the food
was poorly prepared in very unsanitary
condition (sic).” (Id.) Plaintiff claims that
he was remanded to the NCCC for eight
months. (Id.) Plaintiff alleges that, on or
about November 11, 2013, he appeared
before the Honorable Christopher Quinn,
“who declared his imprisonment in the
Nassau County Jail unconstitutional, and
released him.” (Id.)
Plaintiff alleges that, on or about
February 6, 2013, upon learning that
plaintiff’s judgment of conviction was
vacated, former District Attorney Rice and
ADA Doddato “specifically and falsely made
an affirmation, purported to be in support to
an application for a writ of Habeas Corpus Ad
Prosequendum,” knowing they had no
authorization to do so. (Id.) Plaintiff claims
that, when Rice and Doddato had to disclose
the judge who granted the writ, they lied and
“named a Judge who had nothing to do with
the writ, and never granted it.” (Id.) Plaintiff
alleges that, as a result, he was taken into
custody, brought before a judge for “corrupt
proceedings,” and remanded to the Nassau
County Correctional Center (“NCCC”)
indefinitely, even though Rice and Doddato
were not ready for trial, there was no trial
date, and the presiding judge was under
mandatory retirement and, thus, could not
preside over criminal trials. (Id.) Plaintiff
claims that their “sole motive was retaliation
to inflict multiple punishments to plaintiff for
the same offense” and that they had a goal of
“remov[ing] plaintiff from a civil non
punitive confinement within the Immigration
detention Facility [ ] to expose him and
punish him in a punitive and criminal
confinement atypical to the INS Detention
Facility, without a judgment or due process,
in their own jail Facility with the worst
inhumane conditions.” (Id.) Plaintiff alleges
that the NCCC had “unconstitutional
practices and [was] notorious for abuses and
civil rights violations, unbearable as to
amount to torture.” (Id.)
Specifically,
plaintiff alleges that his cell was “so cold that
you cannot sleep,” that there was no clean
drinking water, that there was “a broken
Plaintiff also alleges that the Nassau
County Probation Department is wrongfully
withholding $8,415.00 from plaintiff.
(Compl. ¶ 9.) Plaintiff claims that he
contacted the Nassau County Probation
Department by phone and fax in order to get
his money back, and was told that as long as
his conviction has been vacated, he would get
a refund, but they would need to verify it first.
(Id.) Plaintiff alleges that “[a]fter about a
month of inquiry,” he was directed to speak
directly with a specific attorney, who
requested that plaintiff send him a copy of the
judgment vacating the conviction. (Id.)
Plaintiff contends that he spoke to Mr.
Schenk, who stated that he needed to confer
with the Nassau County District Attorney and
prosecuting ADA. (Id.) Plaintiff alleges that,
when he called Mr. Schenk back the next day,
Mr. Schenk was “very hostile, [said that] he
is not releasing any of the funds, and that
plaintiff had not to call him anymore, and that
‘we intend to get a conviction again, and that
the system did not work, we will make sure it
works fine next time.’” (Id.) Plaintiff
contends that this was a “deliberate effort to
3
deprive plaintiff of his property without the
due process of law.” (Id.)
motion to dismiss. The Court instructed
district courts to first “identify[ ] pleadings
that, because they are no more than
conclusions, are not entitled to the
assumption of truth.” 556 U.S. at 679.
Though “legal conclusions can provide the
framework of a complaint, they must be
supported by factual allegations.”
Id.
Second, if a complaint contains “wellpleaded factual allegations, a court should
assume their veracity and then determine
whether they plausibly give rise to an
entitlement to relief.” Id.
B. Procedural History
Plaintiff commenced this action on
November 10, 2014. On July 10, 2015, the
defendants filed a motion for judgment on the
pleadings. On August 14, 2015, plaintiff filed
his opposition, and on August 24, 2015,
defendants filed their reply. The Court has
fully considered the parties’ submissions.
II. STANDARD OF REVIEW
The Court notes that in adjudicating this
motion, it is entitled to consider: “(1) facts
alleged in the complaint and documents
attached to it or incorporated in it by
reference, (2) documents ‘integral’ to the
complaint and relied upon in it, even if not
attached or incorporated by reference, (3)
documents or information contained in
defendant’s motion papers if plaintiff has
knowledge or possession of the material and
relied on it in framing the complaint, (4)
public disclosure documents required by law
to be, and that have been, filed with the
Securities and Exchange Commission, and
(5) facts of which judicial notice may
properly be taken under Rule 201 of the
Federal Rules of Evidence.” In re Merrill
Lynch & Co., 273 F. Supp. 2d 351, 356-57
(S.D.N.Y. 2003) (internal citations omitted),
aff’d in part and reversed in part on other
grounds sub nom. Lentell v. Merrill Lynch &
Co., 396 F.3d 161 (2d Cir. 2005); see also
Cortec Indus., Inc. v. Sum Holding L.P., 949
F.2d 42, 48 (2d Cir. 1991) (“[T]he district
court . . . could have viewed [the documents]
on the motion to dismiss because there was
undisputed notice to plaintiffs of their
contents and they were integral to plaintiffs’
claim.”).
Courts evaluate a motion for judgment on
the pleadings pursuant to Federal Rule of
Civil Procedure 12(c) under the same
standard as a motion pursuant to Federal Rule
of Civil Procedure 12(b)(6) for failure to state
a claim. See Hayden v. Paterson, 594 F.3d
150, 160 (2d Cir. 2010). In reviewing a
motion to dismiss pursuant to Rule 12(b)(6),
the Court must accept the factual allegations
set forth in the complaint as true and draw all
reasonable inferences in favor of the plaintiff.
See Cleveland v. Caplaw Enters., 448 F.3d
518, 521 (2d Cir. 2006); Nechis v. Oxford
Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.
2005). “In order to survive a motion to
dismiss under Rule 12(b)(6), a complaint
must allege a plausible set of facts sufficient
‘to raise a right to relief above the speculative
level.’” Operating Local 649 Annuity Trust
Fund v. Smith Barney Fund Mgmt. LLC, 595
F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555
(2007)). This standard does not require
“heightened fact pleading of specifics, but
only enough facts to state a claim to relief that
is plausible on its face.” Twombly, 550 U.S.
at 570.
The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, 556 U.S. 662 (2009), setting forth a
two-pronged approach for courts deciding a
Where, as here, the plaintiff is proceeding
pro se, “a court is obliged to construe his
4
pleadings liberally, particularly when they
allege civil rights violations.” McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004). A pro se plaintiff's complaint, while
liberally interpreted, still must “‘state a claim
to relief that is plausible on its face.’”
Mancuso v. Hynes, 379 F. App’x 60, 61 (2d
Cir. 2010) (quoting Iqbal, 556 U.S. at 678);
see also Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009) (applying Twombly and Iqbal to
pro se complaint).
A. Double Jeopardy
1. Legal Standard
Plaintiff alleges that his remand to the
NCCC, following former District Attorney
Rice and ADA Doddato’s application for a
writ of Habeas Corpus Ad Prosequendum,
violates the Double Jeopardy Clause.
(Compl. ¶ 3(a); Pl.’s Opp’n at 11.) The
Double Jeopardy Clause protects an
individual’s right not to be “subject for the
same offence to be twice put in jeopardy of
life or limb.” U.S. Const. amend. V, cl. 2. It
prohibits both the second prosecution of a
defendant for the same offense after an
acquittal or a conviction and the imposition
of multiple punishments for the same offense.
North Carolina v. Pearce, 395 U.S. 711, 717
(1969), overruled on other grounds, Alabama
v. Smith, 490 U.S. 794 (1989). “It has long
been settled, however, that the Double
Jeopardy Clause’s general prohibition
against successive prosecutions does not
prevent the government from retrying a
defendant who succeeds in getting his first
conviction set aside, through direct appeal or
collateral attack, because of some error in the
proceedings
leading
to
conviction.”
Lockhart v. Nelson, 488 U.S. 33, 38 (1988)
(citing United States v. Ball, 163 U.S. 662
(1896); United States v. Tateo, 377 U.S. 463,
465 (1964)).
The Supreme Court has
recognized an exception to this “general rule
that the Double Jeopardy Clause does not bar
the retrial of a defendant who has succeeded
in getting his conviction set aside for error in
the proceedings below” in the situation
“where a defendant’s conviction is reversed
by an appellate court on the sole ground that
the evidence was insufficient to sustain the
jury’s verdict.” Id. at 39 (citing Burks v.
United States, 437 U.S. 1, 18 (1978)).
III. DISCUSSION
Plaintiff brings several claims under
Section 1983 against the defendants. To
prevail on a claim under Section 1983, a
plaintiff must show: (1) the deprivation of
any rights, privileges, or immunities secured
by the Constitution and its laws; (2) by a
person acting under the color of state law. 42
U.S.C. § 1983. “Section 1983 itself creates
no substantive rights; it provides only a
procedure for redress for the deprivation of
rights established elsewhere.” Sykes v.
James, 13 F.3d 515, 519 (2d Cir. 1993)
(citation omitted). Plaintiff brings claims
under Section 1983 alleging: (1) a violation
of his right against double jeopardy; (2) a
violation of his due process rights due to his
incarceration at NCCC; and (3); a violation
of his due process rights due to the retention
of his funds; and (4) a violation of his Eighth
Amendment right due to the conditions of his
confinement. The Court addresses each of
these arguments in turn. For purposes of this
motion, the parties do not dispute that
defendants were acting under color of state
law. The question presented, therefore, is
whether plaintiff has adequately pled a
plausible claim that defendants’ conduct
deprived plaintiff of the rights he asserts.
5
2. Application
determines
whether
the
procedures
surrounding
that
deprivation
were
constitutionally adequate. See Shakur v.
Selsky, 391 F.3d 106, 118 (2d Cir. 2004). “A
liberty interest may arise from the
Constitution itself, by reason of guarantees
implicit in the word ‘liberty,’ or it may arise
from an expectation or interest created by
state laws or policies.” Wilkinson v. Austin,
545 U.S. 209, 221 (2005) (internal citations
omitted).
In this case, plaintiff was remanded to the
NCCC after former District Attorney Rice
and ADA Doddato applied for a writ of
Habeas Corpus Ad Prosequendum following
the Second Department’s opinion remanding
his criminal case for a new trial. Although
plaintiff contends that he was impermissibly
tried twice for the same crime, his criminal
case was remitted for a new trial because the
trial court failed to ensure that his waiver of
his right to counsel was made knowingly,
intelligently, and voluntarily. (Ex. C to Lai
Decl., People v. Bristol, 958 N.Y.S.2d 215,
218 (N.Y. App. Div. 2013)). The Second
Department specifically found that “the
verdict of the guilt was not against the weight
of the evidence.” Id. at 217. Thus, because
on appeal, plaintiff succeeded in getting his
conviction set aside due to an error in the
proceedings, and there was no finding that
the verdict was against the weight of the
evidence, the subsequent prosecution of
plaintiff did not violate plaintiff’s rights.
Therefore, plaintiff’s claim that defendants’
violated his double jeopardy right is
dismissed.
2. Application
Plaintiff alleges that his due process
rights were violated when (1) he was
remanded to NCCC “without competent
judicial authority, in Nassau County through
foisted documents prepared by Lauren
Doddato, and approved by Kathleen Rice
pulling all strings to circumvent statutory
mandate”; and (2) his “U.S. currency” was
taken and kept “without a valid judgment or
a hearing to determine whether the currency
was linked to criminality, rather, the
defendants attempted to do that by trick.”
(Pl.’s Opp’n at 11; see also Compl. ¶ 3.)
a. Remand to NCCC
B. Due Process Claims
Plaintiff claims that he was “seized and
imprisoned without due process” when he
was “taken from a non punitive (sic) federal
facility to a punitive facility, without
competent judicial authority” due to the
actions of ADA Doddatto and former District
Attorney Rice.
(Pl.’s Opp’n at 11.)
However, it is clear from the record that
plaintiff’s remand to NCCC was pursuant to
the Second Department’s opinion remitting
his case for a new trial. People v. Bristol, 958
N.Y.S.2d at 218. Thus, plaintiff’s due
1. Legal Standard
In order to assert a violation of procedural
due process rights, a plaintiff must “first
identify a property right, second show that
the state has deprived him of that right, and
third show that the deprivation was effected
without due process.” Local 342, Long
Island Pub. Serv. Emps., UMD, ILA, AFLCIO v. Town Bd. of Huntington, 31 F.3d
1191, 1194 (2d Cir. 1994) (citation and
emphasis omitted). Thus, a claimed violation
of procedural due process involves a two-step
analysis: (1) the court examines whether the
State deprived plaintiff of a constitutionally
protected interest, and (2) if so, the court
6
John and Schepis’ alleged seizure of
$4,915.00 in U.S. currency and other
personal property from plaintiff when they
arrested him, (Compl. ¶ 5), and second,
Nassau County Probation Department and
Schenk’s alleged refusal to release plaintiff’s
funds when his conviction was vacated in
2013. (Id. ¶ 9.)
process claim based on his remand to the
NCCC is without merit, and is dismissed.2
b. Plaintiff’s Funds
Plaintiff also claims that his due process
rights were violated when his “U.S.
currency” was taken and kept “without a
valid judgment or a hearing to determine
whether the currency was linked to
criminality.” (Pl.’s Opp’n at 11.) Defendants
argue that this claim should be dismissed
because plaintiff’s restitution funds were
“distributed pursuant to a valid court order.”
(Defs.’ Mem. of Law at 19.)
i. 2009 Seizure of Funds
As an initial matter, plaintiff’s challenge
to the Detectives John and Schepis’ alleged
seizure of plaintiff’s U.S. currency and
personal property in 2009 is barred by the
statute of limitations.
Plaintiff appears to challenge two aspects
of the seizure of his funds: first, Detectives
immunity, regardless of their alleged illegality.”).
Thus, “[i]t is well-settled that prosecutors performing
prosecutorial activities that are ‘intimately associated
with the judicial phase of the criminal process’ are
entitled to absolute immunity from an action for
damages under § 1983.” Ying Jing Gan v. City of New
York, 996 F.2d 522, 530 (2d Cir. 1993) (quoting
Imbler, 424 U.S. at 430); see Anilao v. Spota, 774 F.
Supp. 2d 457, 476-78 (E.D.N.Y. 2011) (detailing
standard). Prosecutors do not enjoy absolute
immunity, however, for “those aspects of the
prosecutor’s responsibility that cast him in the role of
an administrator or investigative officer rather than
that of advocate.” Imbler, 424 U.S. at 430-31.
Plaintiff’s allegations relate to former District
Attorney Rice, ADA Huggard, and ADA Doddato’s
actions in relation to applying for a writ of habeas
corpus ad prosequendum. Plaintiff’s allegations do
not in any way allege that any prosecutor engaged in
an investigative or administrative function that would
cause immunity not to attach. Therefore, these
defendants would be absolutely immune from any
claim arising out of their prosecution of the plaintiff.
Defendants also argue that the claims against former
District Attorney Rice must be dismissed because
plaintiff failed to allege that Rice had any personal
involvement in plaintiff’s underlying case. However,
because the Court has found that plaintiff’s claims
against former District Attorney Rice would be
entitled to absolute prosecutorial immunity, it need
not, and does not, reach this issue.
2
In any event, the prosecutors, former District
Attorney Rice, ADA Huggard, and ADA Doddato,
would be entitled to absolute immunity on both the
Double Jeopardy and Due Process claims because
plaintiff’s claims against them arise from their pursuit
of a criminal proceeding against him. “It is by now
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)
(quoting Imbler v. Pachtman, 424 U.S. 409, 410, 431
(1976)) (internal citation 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) (alteration in original) (quoting Dory v.
Ryan, 25 F.3d 81, 83 (2d Cir. 1994)). For example, in
Hill, the Second Circuit held that an Assistant District
Attorney’s alleged acts of, inter alia, “conspiring to
present falsified evidence to, and to withhold
exculpatory evidence from, a grand jury” were
“clearly protected by the doctrine of absolute
immunity as all are part of his function as an
advocate.” Id. at 661; see also Peay v. Ajello, 470 F.3d
65, 67-68 (2d Cir. 2006) (“Plaintiff’s claims against
[his prosecutor], which encompass activities involving
the initiation and pursuit of prosecution [including
fabricating evidence used at trial, withholding
exculpatory evidence, suborning perjury, and
attempting to intimidate him into accepting a guilty
plea], are foreclosed by absolute prosecutorial
7
“Section 1983 does not provide a specific
statute of limitations. Thus, courts apply the
statute of limitations for personal injury
actions under state law.” Hogan v. Fischer,
738 F.3d 509, 517 (2d Cir. 2013) (citing
Owens v. Okure, 488 U.S. 235, 249-51
(1989) and Pearl v. City of Long Beach, 296
F.3d 76, 79 (2d Cir. 2002). “Section 1983
actions filed in New York are therefore
subject to a three-year statute of limitations.”
Id. (citing Pearl, 296 F.3d at 79 and N.Y.
C.P.L.R. § 214).
Furthermore, even assuming the restitution
funds had already been distributed,
defendants have cited no authority for the
proposition that plaintiff is not entitled to
reimbursement of his funds if his conviction
is vacated. In fact, defendants’ brief contains
no legal citations whatsoever in connection
with their argument on this claim, but rather,
contains simply a conclusory argument that
the criminal matter is still open. Thus, at this
juncture, defendants’ motion to dismiss
plaintiff’s due process claim on grounds that
his funds were properly distributed is denied.
Defendants can renew the motion on this
ground with additional documentation and/or
legal argument with respect to these funds.4
Plaintiff has exceeded the three-year
statute of limitations for his claim alleging
wrongful seizure of his property, which
occurred in 2008. Thus, plaintiff’s due
process claim based on the alleged wrongful
seizure of his property in 2008 must be
dismissed.3
C. Conditions of Confinement
Plaintiff’s complaint includes an Eighth
Amendment claim regarding his conditions
of confinement at the NCCC.5 Specifically,
plaintiff alleges that his cell was “so cold that
you cannot sleep,” that there was no clean
drinking water, that there was “a broken
sewage system with back up fecal material in
the cell and they provided no glove to clean
and deal with the situation,” that “all the
pipes are rusty,” and that there was “no soap
to clean the toilettes (sic).” (Compl. ¶ 7.)
Plaintiff alleges that, as a result, he “caught a
fungus infection in his left big toe.” (Id.)
Plaintiff further claims that “the whole place
was filthy, infested with rodents [and] insects
and the odor was noxious at all times; and the
food was poorly prepared in very unsanitary
condition (sic).” (Id.) Such allegations are
ii. 2013 Retention of Funds
As to plaintiff’s claim regarding the
alleged refusal to release his funds when his
underlying conviction was vacated and
remitted for a new trial in 2013, although
defendants cite to a restitution order, that
restitution order was based on plaintiff’s
sentencing for a conviction that has now been
vacated. Defendants have failed to provide
this Court with an order allowing the funds to
be held pending a new trial, or a citation to
any legal authority for the proposition that the
defendants can continue to hold plaintiff’s
money even when the conviction underlying
the restitution order has been vacated.
3
To the extent that plaintiff also challenges former
District Attorney Rice and ADA Huggard’s
preparation of a letter around September 30, 2009, “to
legitimize the seizure of the $4,915.00 from plaintiff,”
(Compl. ¶ 7), such a claim would also be barred by the
statute of limitations, as well as prosecutorial
immunity, for the reasons discussed supra.
just indicate that restitution was ordered. (See Ex. E
to Lai Decl., Certificate of Disposition; Ex. F to Lai
Decl., Amended Restitution/Reparation by Civil
Judgment Order.)
5
Defendants do not argue that plaintiff failed to sue
the proper entity with respect to his conditions of
confinement claim. In any event, because plaintiff is
pro se, the Court liberally construes his complaint to
allege a claim against the County of Nassau for his
prison conditions.
4
It is not even clear that the funds were distributed.
Defendants make a conclusory statement that the
funds were disbursed, but the documents submitted
8
sufficient to plead a plausible claim under the
Eighth Amendment.
F.3d at 185-86 (quoting Farmer, 511 U.S. at
837).
1. Legal Standard
2. Application
“[U]nsanitary conditions in a prison cell
can, in egregious circumstances, rise to the
level of cruel and unusual punishment.”
Walker v. Schult, 717 F.3d 119, 127 (2d Cir.
2013). Plaintiff has alleged that there was no
clean drinking water, that there was “a broken
sewage system with back up fecal material in
the cell and they provided no glove to clean
and deal with the situation,” that “all the
pipes are rusty,” and that there was “no soap
to clean the toilettes (sic).” (Compl. ¶ 7.)
Plaintiff further claims that “the whole place
was filthy, infested with rodents [and] insects
and the odor was noxious at all times.” (Id.)
Such allegations are sufficient to state a
plausible claim under the objective prong of
plaintiff’s conditions of confinement claim.
See, e.g., Gaston v. Coughlin, 249 F.3d 156,
166 (2d Cir. 2001) (reversing a grant of
summary judgment where plaintiff alleged
rodent infestation and exposure to human
feces, urine, and sewage water in his cell);
Wright v. McMann, 387 F.2d 519, 526 (2d
Cir. 1967) (concluding that allegations by
prisoner that, inter alia, he was deprived of
basic elements of hygiene such as soap and
toilet paper, and that cell was filthy and
unheated would, if established, constitute
cruel and unusual punishment); Barnes v.
Cty. of Monroe, 85 F. Supp. 3d 696, 738
(W.D.N.Y. 2015) (“At this stage in the
litigation, Plaintiff has alleged the objective
prong of his conditions of confinement claim.
Plaintiff has alleged that he was exposed to
human excrement and bodily fluids in a
poorly ventilated cell over the course of
multiple days.”).
Plaintiff claims that he was subjected to
cruel and unusual punishment because the
conditions of his confinement violated
contemporary standards of decency. See Day
v. Warren, 360 F. App’x 207, 208 (2d Cir.
2010); Phelps v. Kapnolas, 308 F.3d 180, 185
(2d Cir. 2002). A prisoner alleging this type
of Eighth Amendment claim “may prevail
only where he proves both an objective
element—that
the
prison
officials’
transgression was ‘sufficiently serious’—and
a subjective element—that the officials acted,
or omitted to act, with a ‘sufficiently culpable
state of mind,’ i.e., with ‘deliberate
indifference to inmate health or safety.’”
Phelps, 308 F.3d at 185 (quoting Farmer v.
Brennan, 511 U.S. 825, 834 (1994)).
The objective requirement “‘does not
mandate comfortable prisons,’ [but]
prisoners may not be denied ‘the minimal
civilized measure of life’s necessities.’” Id.
(quoting Rhodes v. Chapman, 452 U.S. 337,
347, 349 (1981)).
Thus, the Eighth
Amendment requires prisoners receive their
“basic human needs—e.g., food, clothing,
shelter, medical care, and reasonable safety.”
Helling v. McKinney, 509 U.S. 25, 32 (1993)
(citation and internal quotation marks
omitted). Prison officials also may not “pose
an unreasonable risk of serious damage to
[prisoners’] future health.”
Id. at 35.
Regarding the subjective requirement, “‘a
prison official cannot be found liable under
the Eighth Amendment for denying an
inmate humane conditions of confinement
unless the official knows of and disregards an
excessive risk to inmate health or safety; the
official must both be aware of facts from
which the inference could be drawn that a
substantial risk of serious harm exists, and he
must also draw the inference.’” Phelps, 308
Further, “[c]ourts in the Second Circuit
have recognized that ‘depriving an inmate of
food or serving him contaminated food may
constitute a violation of the Eighth
9
Amendment.’” Varricchio v. Cty. of Nassau,
702 F. Supp. 2d 40, 56 (E.D.N.Y. 2010)
(quoting Quintana v. McCoy, No. 9:03-CV0924, 2006 WL 2827673, at *6 (N.D.N.Y.
Sept. 29, 2006)); see also Moncrieffe v.
Witbeck, No. 97-CV-253, 2000 WL 949457,
at *6 (N.D.N.Y. June 29, 2000) (same);
Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.
1983) (per curiam) (concluding that the
Eighth Amendment requires prisoners to be
provided with “nutritionally adequate food
that is prepared and served under conditions
which do not present an immediate danger to
the health and well being of the inmates who
consume
it”)
(quotation
omitted);
Chapdelaine v. Keller, No. 95-CV-1126
(RSP)(GLS), 1998 WL 357350, at *12
(N.D.N.Y. Apr. 16, 1998) (“[W]hen
establishing that the food served by a prison
violates the Eighth Amendment, an inmate
must show that the food was either
nutritionally inadequate or prepared, and
served in a fashion that presents an
immediate danger to the inmate’s health or
well-being.”) (citation omitted).
Eighth Amendment claim based on his
allegations of unsanitary conditions in his
cell, contaminated food, and a cell so cold
that he could not sleep.
Although plaintiff has not specifically
alleged that the defendants had knowledge of
these conditions, “Defendants’ knowledge
may be inferred by the simple fact that these
Defendants must have viewed the conditions
of the cell when they placed Plaintiff in it.”
Barnes, 85 F. Supp. 3d at 738; see also Brock
v. Wright, 315 F.3d 158, 164 (2d Cir. 2003)
(“[E]vidence that the risk was obvious or
otherwise must have been known to a
defendant is sufficient to permit a jury to
conclude that the defendant was actually
aware of it.”); see also Gaston, 249 F.3d at
166 (finding Plaintiff’s allegation that
defendant prison guards “made daily rounds
of SHU” was sufficient to allege that
defendants had actual knowledge of the
inhumane conditions).
Thus, plaintiff has plausibly alleged his
conditions of confinement claim under the
Eighth Amendment, and defendants’ motion
for judgment on the pleadings on this claim is
denied.
The Second Circuit has also held “that an
Eighth Amendment claim may be established
by proof that the inmate was subjected for a
prolonged period to bitter cold.” Gaston, 249
F.3d at 164 (reinstating Eighth Amendment
claim of frigid temperatures in plaintiff’s
cell); see also Walker, 717 F.3d at 126-28
(finding that plaintiff plausibly alleged a
cruel and unusual punishment claim where he
alleged “stifling heat in the summer and
freezing cold in the winter”); Corselli v.
Coughlin, 842 F.2d 23, 27 (2d Cir. 1988)
(reversing grant of summary judgment in
favor of defendants where there was evidence
that plaintiff was “deliberately exposed to
bitterly cold temperature for approximately
three months”).
D. Qualified Immunity
Defendants argue that the individual
defendants are entitled to dismissal of the
claims against them in their individual
capacities on the grounds of qualified
immunity. However, because of gaps in the
record, at this juncture, the Court cannot
determine whether Mr. Schenk’s conduct
violated plaintiff’s clearly established rights
or whether it would have been objectively
reasonable for him to believe that his conduct
did not violate plaintiff’s rights.
Thus, drawing all reasonable inferences
in plaintiff’s favor, the Court finds that he has
plausibly alleged the objective prong of his
10
1. Legal Standard
asserting a qualified immunity defense at the
12(b)(6) stage . . . faces a formidable hurdle.
Because the evidence supporting a finding of
qualified immunity is normally adduced
during the discovery process and at trial, the
defense of qualified immunity [usually]
cannot support the grant of a Fed. R. Civ. P.
12(b)(6) motion for failure to state a claim
upon which relief can be granted.” (internal
citations, alteration, and quotation marks
omitted)). In particular, the facts supporting
the defense must be clear from the face of the
complaint. In addition, in such situations,
“plaintiff is entitled to all reasonable
inferences from the facts alleged, not only
those that support his claim, but also those
that defeat the immunity defense.”
McKenna, 386 F.3d at 436.
Government actors may be shielded from
liability for civil damages by qualified
immunity, i.e., if their “conduct did not
violate plaintiff’s clearly established rights,
or if it would have been objectively
reasonable for the official to believe that his
conduct did not violate plaintiff’s rights.”
Mandell v. Cnty. of Suffolk, 316 F.3d 368,
385 (2d Cir. 2003); see also Fielding v.
Tollaksen, 257 F. App’x 400, 401 (2d Cir.
2007) (“The police officers, in turn, are
protected by qualified immunity if their
actions do not violate clearly established law,
or it was objectively reasonable for them to
believe that their actions did not violate the
law.”). As the Second Circuit has noted,
“[t]his doctrine is said to be justified in part
by the risk that the ‘fear of personal monetary
liability and harassing litigation will unduly
inhibit officials in the discharge of their
duties.’” McClellan v. Smith, 439 F.3d 137,
147 (2d Cir. 2006) (quoting Thomas v.
Roach, 165 F.3d 137, 142 (2d Cir. 1999)).
Thus, qualified immunity is not merely a
defense, but rather is also “an entitlement not
to stand trial or face the other burdens of
litigation.” Mitchell v. Forsyth, 472 U.S.
511, 526 (1985).
Accordingly, the
availability of qualified immunity should
similarly be decided by a court “[a]t the
earliest possible stage in litigation.” Hunter
v. Bryant, 502 U.S. 224, 227 (1991).
2. Application
As an initial matter, because the claims
against former District Attorney Rice, ADA
Huggard, and ADA Doddato, Detective John,
and Detective Schepis were dismissed, and
because the conditions of confinement claim
is against only the County, the only
remaining claim as to an individual defendant
is against Mr. Schenk for the due process
claim regarding the withholding of plaintiff’s
funds in 2013.
Defendants argue only generally that
“County Defendants’ conduct did not violate
clearly established statutory or constitutional
rights of which a reasonable person would
have known; it was objectively reasonable
for County Defendants to believe that the
actions taken were lawful.
Therefore,
County Defendants’ are entitle to qualified
immunity and Plaintiff’s claims must be
dismissed.” (Defs.’ Mem. of Law at 24.)
Nonetheless, the Second Circuit has
emphasized that “a defendant presenting an
immunity defense on a Rule 12(b)(6) [or a
12(c)] motion instead of a motion for
summary judgment must accept the more
stringent standard applicable to this
procedural route.” McKenna v. Wright, 386
F.3d 432, 436 (2d Cir. 2004); see also
McCray v. City of New York, Nos. 03-CV9685 (DAB), 03-CV-9974 (DAB), 03-CV10080 (DAB), 2007 WL 4352748, at *18
(S.D.N.Y. Dec. 11, 2007) (“A defendant
The fundamental shortcoming with
respect to this claim is that the Court cannot
assess the qualified immunity issue because
of the gaps in the record as it relates to this
11
claim. As discussed supra, defendants have
failed to provide the Court with any order
indicating that plaintiff’s funds could be held
pending a new trial, or a citation to any legal
authority for the proposition that the
defendants can continue to hold plaintiff’s
money even when the conviction underlying
the restitution order has been vacated. Thus,
the Court cannot determine whether Mr.
Schenk’s conduct did not violate plaintiff’s
clearly established rights or whether it would
have been objectively reasonable for him to
believe that his conduct did not violate
plaintiff’s rights. Therefore, the Court denies
the motion to dismiss on qualified immunity
grounds, without prejudice to defendants
raising this issue in a summary judgment
motion.
SO ORDERED.
________________________
JOSEPH F. BIANCO
United States District Judge
Dated:
March 8, 2016
Central Islip, NY
***
Plaintiff proceeds pro se. Defendants are
represented by Liora M. Ben-Sorek and
Thomas Lai, of the Nassau County
Attorney’s Office, 1 West Street, Mineola,
NY 11501.
IV. CONCLUSION
For the foregoing reasons, defendants’
motion for judgment on the pleadings is
granted in part, and denied in part.
Defendants’ motion is granted as to
plaintiff’s claims alleging a violation of his
double jeopardy right, due process right
regarding his remand to NCCC, and due
process right regarding the alleged seizure of
his personal property and money in 2009.
However, defendants’ motion is denied as to
plaintiff’s due process claim regarding the
alleged refusal to return his funds in 2013,
and his conditions of confinement claim. All
claims against former District Attorney Rice,
Detective John, Detective Schepis, ADA
Huggard, and ADA Doddato are dismissed.
Additionally,
plaintiff’s
motion
voluntarily withdrawing his claims against
the Nassau County Department of Probation
and Nassau County District Attorney’s
Office, and requesting that the caption be
amended to substitute Edward Schenk for
defendant Sthen Thibault is granted. The
Clerk of the Court shall amend the caption
accordingly.
12
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