Harrison v. County Of Nassau et al

Filing 29

ORDER granting in part and denying in part 22 Motion to Dismiss for Failure to State a Claim; denying 28 Motion for Hearing. For the reasons set forth herein, defendants' motion for judgment on the pleadings is granted in part and denied in part. Plaintiff's motion for a hearing is denied. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/1/2016. (Akers, Medora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 15-CV-2712 (JFB)(AKT)
_____________________

MALEK HARRISON,
Plaintiff,
VERSUS

COUNTY OF NASSAU, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
August 1, 2016
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff, Malek Harrison (“plaintiff”),
brings this action against the County of
Nassau; the Nassau County Police
Department; the Nassau County Office of the
District Attorney (the “District Attorney’s
Office” or the “District Attorney”); Nassau
County
Detective,
Ronald
Rispoli
(“Detective Rispoli”); Assistant District
Attorney, Jhounelle Cunningham (“ADA
Cunningham”); and Assistant District
Attorney, Carolyn Abdenour (“ADA
Abdenour”) (collectively, “defendants”),
alleging that defendants are liable for (1)
false arrest; (2) malicious prosecution; (3)
police misconduct; (4) prosecutorial
misconduct; (5) abuse of power; and (6)
conspiracy to deny plaintiff’s constitutional
right to due process and a fair trial.
1

Plaintiff has referenced facts in his Opposition that
are not included in his Complaint. Although courts

Defendants now move for partial
judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c). For
the following reasons, defendants’ motion is
granted in part and denied in part.
Specifically, defendants’ motion is granted,
with the exception of its motion to dismiss all
claims against the County of Nassau.
I.
A.

BACKGROUND
Factual Background

Plaintiff’s
disjointed
Complaint
(“Compl.”) is difficult to follow; however,
the Court has gleaned the following
allegations from the Complaint, which it has
supplemented with information from
plaintiff’s
Opposition
(“Opp’n”)
to
defendants’ motion.1 Plaintiff’s case relates
generally will not accept factual allegations raised for
the first time in opposition to a motion to dismiss,

to his arrest in connection with the alleged
use of a fraudulent instrument at a Target
store on May 24, 2012 (the “Target crime” or
the “2012 crime”). (Compl. at 3.)

With respect to the 2012 crime, plaintiff
alleges that on May 31, 2012, while attending
a court appearance for the 2011 crime,
Detective Rispoli approached him and
informed him that he was under arrest in
connection with the Target crime. (Opp’n at
2.) Plaintiff surrendered himself on June 4,
2012. (Id. at 3.)

The year before, plaintiff was also
arrested for his alleged involvement in the
use of a fraudulent instrument at a Marshalls
retailer (the “Marshalls crime” or the “2011
crime”).
Plaintiff contends that “it is
imperative to draw inferences from plaintiff’s
arrest and prosecution [for the 2011 crime],
which were perpetrated primarily by the
same parties named as Defendants herein.”2
(Id.) Concerning the 2011 crime, plaintiff
asserts, in relevant part, that Detective
Rispoli “manufactured” a statement by a
witness, Nils Renner, in order to implicate
plaintiff. (Id. at 4 (“[T]he initial 2011 arrest
by Detective Rispoli[] was found to be based
upon plaintiff’s identification, as made in a
document fraudulently created by Detective
Rispoli, namely, the ‘Statement [o]f Nils
Renner.’”); see also Opp’n at 5.) He asserts
that defendants conspired with Detective
Rispoli to overlook allegedly obvious
infirmities in the Renner Statement and used
it to falsely and maliciously prosecute
plaintiff despite the fact that the district
attorneys prosecuting the case knew that
plaintiff was innocent. (Compl. at 4.)

Plaintiff alleges that, as was the case
when he was arrested and prosecuted for the
2011 crime, the District Attorney’s Office
conspired with Detective Rispoli to “turn a
blind eye to Rispoli’s misconduct” and “to
pursue and manufacture a farcical
prosecution in an attempt to secure a
conviction” in connection with the Target
crime.3 For example, plaintiff accuses ADA
Abdenour of “manufacturing” the affidavit of
witness Ntozake Morgan. (Compl. at 6.)
Plaintiff contends: (1) that Ms. Morgan was
not interviewed following the crime and, in
fact, that ADA Abdenour did not produce the
Morgan statement until seventeen months
after the crime occurred; and (2) that the
District Attorney’s belated introduction of
this witness “demonstrates its intention to
manufacture a false case against [P]laintiff
with witnesses it believes would acquiesce in
its
knowingly
falsified
events
or
identification of the Plaintiff.” (Id. at 7.) As

some courts have construed the mandate to read a pro
se plaintiff’s papers liberally as allowing for
consideration of such allegations. See Goldson v.
Kral, Clerkin, Redmond, Ryan, Perry & Van Etten,
LLP, No. 13 Civ. 2747, 2014 WL 1910624, at *3
(S.D.N.Y. May 12, 2014) (“When a plaintiff is
proceeding pro se, the Court also may rely on any
opposition papers in assessing the legal sufficiency of
the plaintiff’s claims.”) (internal citations omitted);
Malik v. City of New York, No. 11 Civ. 6062, 2012 WL
3345317, at *5 (S.D.N.Y. Aug. 15, 2012) (“The
mandate to read a pro se plaintiff’s papers liberally,
however, makes it appropriate to consider factual
allegations in Malik’s opposition papers, in addition to
those in his Complaint, in resolving the motion to
dismiss.”) (internal citations omitted), adopted by

2012 WL 4475156 (S.D.N.Y. Sep 28, 2012); Aponte
v. Buono, No. 11 Civ. 1077, 2011 WL 6812924, at *3
(E.D.N.Y. Dec. 28, 2011); Cusamano v. Sobek, 604 F.
Supp. 2d 416, 461 (N.D.N.Y. 2009).
2

Plaintiff has filed a separate lawsuit regarding his
arrest and prosecution for the Marshalls crime (see
2:14-cv-01296-JFB-AKT).
3

As part of this alleged conspiracy, Plaintiff claims
that “the exact photo array claimed to be used by
Detective Rispoli to identify Plaintiff in this May 2012
arrest was found to be the same used in the 2011 case.”
(Compl. at 3.) Plaintiff does not explain how he was
injured by the reuse of the photo array.

2

of power” claim against Detective Rispoli;
(7) dismissal of the prosecutorial misconduct
claim against Detective Rispoli; and (8)
dismissal of all claims against Nassau
County.4
Plaintiff opposed defendants’
motion on November 17, 2015, and
defendants submitted a reply on November
25, 2015. The matter is fully briefed, and the
Court has considered all of the parties’
submissions.

further evidence of this effort, plaintiff
alleges that the District Attorney originally
attempted to introduce a female witness as
the Target cashier who conducted the
transaction during which the fraudulent
instrument was allegedly used, but that, after
a review of the security camera footage
revealed that the cashier involved in the
transaction at issue was a man, the District
Attorney was forced to produce a male
witness, Dustin Williams, which it only
managed to do the day before Mr. Williams
was supposed to testify. (Id. at 5.) He further
alleges that the District Attorney’s Office
“pressured” and “tampered” with this witness
to obtain a positive identification of plaintiff
as evidenced by the fact that Mr. Williams
testified that he was not even sure whether he
was working on the day in question. (Id.)

II.

STANDARD OF REVIEW

On October 15, 2015, defendants moved
for partial judgment on the pleadings
pursuant to Federal Rule of Civil Procedure
12(c), seeking the following relief: (1)
dismissal of all claims against the Nassau
County Police Department; (2) dismissal of
all claims against the Nassau County District
Attorney’s Office; (3) dismissal of all claims
against ADA Cunningham; (4) dismissal of
all claims against ADA Abdenour; (5)
dismissal of the conspiracy claim against
Detective Rispoli; (6) dismissal of the “abuse

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 Nicholas v. Goord, 430 F.3d
652, 658 n.8 (2d Cir. 2005). In reviewing a
motion to dismiss under Rule 12(b)(6) or
12(c), a 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 Enter.,
448 F.3d 518, 521 (2d Cir. 2006); Nechis v.
Oxford Health Plans, Inc., 421 F.3d 96, 100
(2d Cir. 2005). “To survive a motion to
dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 127
S.Ct. 1955, 1955 (2007)). “Once a claim has
been stated adequately, it may be supported
by showing any set of facts consistent with
the allegations in the complaint.” Twombly,
127 S.Ct. at 1974. The Court does not,
therefore, require “heightened fact pleading
of specifics, but only enough facts to state a
claim for relief that is plausible on its face.”

In Defendants’ enumerated requests for relief (see
Defs.’ Mot. at 1), they do not specifically seek to
dismiss the abuse of power and conspiracy causes of
action against all defendants, only as against Detective

Rispoli. However, in their brief, they argue that these
claims should be dismissed in their entirety. Thus, the
Court will consider the motion to dismiss these claims
as against all defendants.

Plaintiff asserts that the prosecutions for
both the 2011 and 2012 crimes “were
dismissed in the wake of undeniable evidence
that no independent evidence existed in either
case that placed the Plaintiff at either location
in the aforementioned cases.” (Id. at 6.)
B.

Procedural Background

4

3

Id. Further, in reviewing a motion to dismiss,
“the district court is normally required to look
only to the allegations on the face of the
complaint.” Roth v. Jennings, 489 F.3d 499,
509 (2d Cir. 2007). Finally, as plaintiff is
appearing pro se, the Court shall “‘construe
[his complaint] broadly, and interpret [it] to
raise the strongest arguments that [it]
suggests.’” Weixel v. Bd. of Educ. of the City
of N.Y., 287 F.3d 138, 145-46 (2d Cir. 2002)
(quoting Cruz v. Gomez, 202 F.3d 593, 597
(2d Cir. 2000)).
III.
A.

acting within the scope of his or her
employment, are legally incapable of
conspiring with each other.
See, e.g.,
Farbstein v. Hicksville Pub. Library, 254 F.
App’x 50, 50-51 (2d Cir. 2007) (affirming
dismissal of conspiracy complaint “at the
first step of analysis” because complaint
made reference only to employees of same
corporation); Rini v. Zwirn, 886 F. Supp. 270,
292 (E.D.N.Y. 1995) (“Intracorporate
immunity has also been extended to the
context of conspiracies between a public
entity and its employees.”); accord Cameron
v. Church, 253 F. Supp. 2d 611, 623
(S.D.N.Y. 2003); Quinn v. Nassau County
Police Dep’t, 53 F. Supp. 2d 347, 359-60
(E.D.N.Y. 1999). Here, plaintiff does not
dispute that defendants are all employees of a
single municipal entity, Nassau County. The
Court has carefully reviewed the complaint
and finds that the intracorporate conspiracy
doctrine prevents a finding of liability of
defendants for participation in a conspiracy
to deny plaintiff his constitutional rights.
Thus, the Court dismisses plaintiff’s
conspiracy claim.

DISCUSSION
Abuse of Power Claim

Plaintiff brings his action pursuant to
Section 1983 and asserts a claim against all
defendants for “abuse of power.” (Compl. at
1.) To prevail on a § 1983 claim, plaintiff
must establish that he was denied a federal
right. See Frederique v. Cty. of Nassau, No.
11-CV-1746 (SIL), 2016 WL 1057008, at *6
(E.D.N.Y. Mar. 11, 2016). However, a
“cause[] of action for ‘abuse of power’ . . .
do[es] not allege the deprivation of any
federal right.” Bravo v. Bexar Cty., TX, No.
12-CV-4009 MKB, 2014 WL 1155302, at *8
(E.D.N.Y. Mar. 21, 2014); see also
O’Bradovich v. Vill. of Tuckahoe, 325 F.
Supp. 2d 413, 426 (S.D.N.Y. 2004)
(“‘[A]buse of power’ is not an independently
cognizable claim for § 1983 purposes.”).
Accordingly, this claim must be dismissed in
its entirety for failure to state a claim upon
which relief may be granted.

C.

Nassau County Police Department

Defendants move to dismiss the claims
against the Nassau County Police
Department, alleging that the Department is
not a suable entity. Defendants are correct
that the Department cannot be sued. See, e.g.,
Jackson v. Cty. of Nassau, No. 07-CV-245
(JFB)(AKT), 2010 WL 335581, at *5
(E.D.N.Y. Jan. 22, 2010) (dismissing
complaint against the Nassau County Police
Department because “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”); Aguilera v. Cty. of Nassau, 425 F.
Supp. 2d 320, 323 (E.D.N.Y. 2006) (“Under
New York law, the Nassau County Police

B. Conspiracy Claim
Plaintiff also alleges that defendants
“conspire[ed] to deny his constitutional right
to due process and a fair trial.” (Compl. at 1.)
The intracorporate conspiracy doctrine posits
that the officers, agents, and employees of a
single corporate or municipal entity, each
4

judicial phase of the criminal process,” but
not 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 v. Pachtman,
424 U.S. 409, 430-31 (1976); see, e.g.,
Shmueli v. City of New York, 424 F.3d 231,
236 (2d Cir. 2005). “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) (quoting Dory v. Ryan, 25 F.3d 81, 83
(2d Cir. 1994)). For example, in Hill, the
Second Circuit held than 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.
Similarly, the Second Circuit has held that
absolute immunity extends to a prosecutor’s
“‘knowing use of perjured testimony’ and the
‘deliberate withholding of exculpatory
information,’” even where the prosecutor
knowingly prosecutes an innocent person.
Shmueli, 424 F.3d at 237-38 (quoting Imbler,
424 U.S. at 431 n.34).

Department is considered an administrative
arm of the County, without a legal identity
separate and apart from the municipality and,
therefore, without the capacity to sue or be
sued.”). Accordingly, their motion to dismiss
the Complaint as against the Nassau County
Police Department is granted.
D.

The District Attorney’s Office

Because the District Attorney’s Office is
likewise an administrative arm of the
municipality, plaintiff’s claims against this
defendant must also be dismissed. See, e.g.,
See Powell v. State of New York, No. 15-CV3733 (MKB), 2015 WL 7756108, at *2
(E.D.N.Y. Nov. 30, 2015) (“The District
Attorney’s Office is a non-suable entity
lacking any distinct legal existence distinct
from the District Attorney.”); Jackson, 2010
WL 335581, at *6 (dismissing Section 1983
claim against Office of the District Attorney
because it is not a suable entity); Conte v. Cty.
of Nassau, No. 06-CV-4746 JFB ETB, 2008
WL 905879, at *1 (E.D.N.Y. Mar. 31, 2008)
(dismissing claim against Nassau County
Office of the District Attorney because it is
an administrative arm of Nassau County and
therefore cannot be sued).
E.

ADAs Cunningham and Abdenour
1.

Defendants argue that the claims against
ADAs Cunningham and Abdenour must be
dismissed as both prosecutors are entitled to
absolute immunity.5

ADA Cunningham

The Complaint makes a single reference
to ADA Cunningham, alleging that:
“Defendant Jhounelle Cunningham . . .
disregarded the misconduct and falsified
evidence submitted by Nassau County
Detective Ronald Rispoli and conspired with
said detective and others to knowingly,
falsely and maliciously prosecute plaintiff
without probable cause or any independent

It is well-settled that prosecutors enjoy
absolute immunity from liability in suits
seeking monetary damages for acts carried
out in their prosecutorial capacities, i.e.,
those acts “intimately associated with the
5

Defendants also argue that Plaintiff has failed to state
a claim against ADAs Cunningham and Abdenour.
However, as the Court agrees that the ADAs are

entitled to absolute immunity, it need not reach this
argument.

5

evidence.” (Compl. at 3.) Even accepting the
allegations that ADA Cunningham used
falsified evidence to maliciously prosecute
plaintiff, ADA Cunningham is still entitled to
absolute immunity because this act is still
reasonably within the function of a
prosecutor. See, e.g., Shmueli, 424 F.3d at
238 (holding that ADAs were entitled to
absolute immunity from allegations that they
“maliciously prosecuted [plaintiff] for
various crimes, all of which they knew she
was innocent of committing”); Dory, 25 F.3d
at 83 (“[A]bsolute immunity protects a
prosecutor from § 1983 liability for virtually
all acts, regardless of motivation, associated
with his function as an advocate. This would
even include . . . allegedly conspiring to
present false evidence at a criminal trial.”);
Collins v. City of New York, 923 F. Supp. 2d
462, 471 (E.D.N.Y. 2013) (noting that “the
falsification of evidence” and “the
subordination of perjury” are “prosecutorial
activities for which absolute immunity
applies” (quoting Taylor v. Kavanagh, 640
F.2d 450, 452 (2d Cir. 1981) (internal
quotation marks omitted))).
2.

following, or in the weeks or
even months following the
crime by anyone in the police
department or the Nassau
County DA’s Office. Ntozake
Morgan’s trial testimony
eliminated any evidence that
he was ever interviewed by,
either Detective Ronald
Rispoli,
or
any other
representative(s)
of
the
Nassau
County
Police
Department or any member of
the Nassau County Office of
the District Attorney prior to
or even up to October 16,
2013. The conspicuousness
of this supporting deposition
coming only five (5) days
prior to the dismissal of the . .
. [the 2011 arrest], smacks not
only of malicious prosecution,
but
also
demonstrates
vindictive prosecution against
a person they knew or should
have known was completely
innocent.

ADA Abdenour
(Compl. at 6.)

Plaintiff’s allegations concerning ADA
Abdenour are similarly cursory, claiming
only that:

However, even assuming that ADA
Abdenour did fabricate witness Morgan’s
statement, doing so would have been part of
her prosecutorial activities in preparing for
trial and, therefore, would be protected by
absolute immunity. See, e.g., Bermudez v.
City of New York, No. 11 CIV. 750 LAP,
2013 WL 593791, at *7 (S.D.N.Y. Feb. 14,
2013) (prosecutor accused of coercing
witness testimony and fabricating evidence
was entitled to absolute immunity as his
alleged misconduct occurred after plaintiff’s
arrest, while the defendant was preparing for
trial).

Assistant District Attorney
Carolyn Abdenour wrote the
supporting deposition on
behalf of alleged witness
Ntozake Morgan on October
16, 2013, some 17 months
after the crime took place.
Miraculously, she was able to
manufacture this affidavit
without the benefit of any
documented or purported
record of any interview of this
alleged witness immediately
6

F. Detective Rispoli

Plaintiff has alleged that the similarities
between the allegedly unfounded arrests and
prosecutions in 2011 and 2012 demonstrate a
pattern of malicious prosecution against him.
(See Compl. at 4 (“[T]he connection between
the two cases is inescapable and thus
inseparable, as they demonstrate a pattern of
malfeasance on the part of the Defendants . .
. .”).) Plaintiff avers that, in 2011, Detective
Rispoli fabricated the Renner witness
statement in order to implicate plaintiff for
possession of a forged instrument and that the
District Attorney’s Office used this falsified
evidence to maliciously prosecute plaintiff
despite the fact that the Office allegedly knew
that plaintiff was innocent. Plaintiff alleges
that a similar episode occurred just a year
later when Detective Rispoli again targeted
plaintiff as the perpetrator in connection with
the Target crime, and the District Attorney’s
Office used allegedly falsified testimony
from witnesses Morgan and Williams to
maliciously prosecute plaintiff, though they
knew he was innocent. As plaintiff proceeds
pro se, the Court construes his allegations to
“raise the strongest arguments that they
suggest.” Weixel, 287 F.3d at 145-46. Given
plaintiff’s allegations that defendants
allegedly twice in two years employed a
similar scheme whereby they fabricated
witness testimony in order to falsely
implicate plaintiff and maliciously prosecute
him (see, e.g., Compl. at 6 (“The inescapable
fact is that Nassau County Detective Ronald
Rispoli decided to make this plaintiff his
personal target in the crime perpetrated
against Target on May 24, 2012. After all,
Rispoli had already conspired against and
falsely arrested [plaintiff] in a January 2011
case of an identical nature . . . .”)), plaintiff
has sufficiently alleged a practice of
malicious prosecution by the County. See

Defendants move to dismiss the
prosecutorial misconduct claim against
Detective Rispoli. Detective Rispoli is not a
prosecutor and therefore cannot commit
prosecutorial misconduct. This claim is
dismissed as against Detective Rispoli.6
G. Nassau County
“A municipality will not be held liable
under § 1983 unless plaintiffs can
demonstrate
that
the
allegedly
unconstitutional action of an individual law
enforcement official was taken pursuant to a
policy or custom officially adopted and
promulgated by that [municipality’s]
officers.” Abreu v. City of N.Y., No. 04-CV1721, 2006 WL 401651, at *4 (E.D.N.Y. Feb.
22, 2006) (quotation marks omitted) (citing
Monell v. Dep’t of Soc. Servs. of City of New
York, 436 U.S. 658, 690 (1978)).
“[M]unicipal liability under § 1983 attaches
where—and only where—a deliberate choice
to follow a course of action is made from
among various alternatives” by the
municipality’s lawmakers. City of Canton v.
Harris, 489 U.S. 378, 389 (1989) (quoting
Pembaur v. Cincinnati, 475 U.S. 469, 483-84
(1986)). “‘[T]he mere assertion . . . that a
municipality has such a custom or policy is
insufficient in the absence of allegations of
fact tending to support, at least
circumstantially, such an inference.’” Zahra
v. Town of Southold, 48 F.3d 674, 685 (2d
Cir. 1995) (quoting Dwares v. City of N.Y.,
985 F.2d 94, 100 (2d Cir. 1993)).
The Court finds that plaintiff has alleged
sufficient facts to state a plausible claim for
municipal liability against the County.
6

Defendants also moved to dismiss the abuse of power
and conspiracy claims against Detective Rispoli. As

the Court has dismissed these claims in their entirety,
it will not separately address them here.

7

Varricchio v. Cty. of Nassau, 702 F. Supp. 2d
40, 61-62 (E.D.N.Y. 2010) (“The Court
concludes that, by alleging at least three
instances in which he personally was
allegedly maliciously prosecuted, plaintiff
has adequately alleged the existence of a
policy or procedure of malicious prosecution
by the County.”).
IV.

the District Attorney; and the prosecutorial
misconduct claim against Detective Ronald
Rispoli, granting plaintiff leave to replead
these claims would be futile, as these are
untenable claims and not suable entities.
With respect to ADAs Abdenour and
Cunningham, the Court also denies leave to
replead claims against them because it is
clear that all of plaintiff’s allegations relate to
their involvement in his prosecution and are
therefore protected by absolute immunity.
Additionally, on December 23, 2015,
plaintiff submitted a supplemental filing
(ECF No. 28) in which he purports to set forth
new evidence in support of his claims. A
review of this material confirms that all the
allegations, including the new allegations
contained in this supplemental filing, relate to
ADAs Abdenour and Cunningham’s roles as
prosecutors in this case. Thus, any attempt to
replead to incorporate this new evidence
would be futile.7

LEAVE TO AMEND

The Second Circuit has emphasized that:
“[a] pro se complaint is to be read liberally.
Certainly the court should not dismiss
without granting leave to amend at least once
when a liberal reading of the complaint gives
any indication that a valid claim might be
stated.” Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000) (quotations and citations
omitted). Under Rule 15(a) of the Federal
Rules of Civil Procedure, the “court should
freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a). However,
leave to replead can be denied where it is
clear that no amendments can cure the
pleading deficiencies and any attempt to
replead would be futile. See Cuoco, 222 F.3d
at 112 (“The problem with [plaintiff’s]
cause[] of action is substantive; better
pleading will not cure it. Repleading would
thus be futile. Such a futile request to replead
should be denied.”); see also Hayden v. Cty.
of Nassau, 180 F.3d 42, 53 (2d Cir. 1999)
(holding that if a plaintiff cannot demonstrate
he is able to amend his complaint “in a
manner which would survive dismissal,
opportunity to replead is rightfully denied”).
With respect to plaintiff’s claims for
abuse of power and conspiracy; his claims
against the Nassau County Police
Department and the Nassau County Office of
7

In this filing, Plaintiff also demands to view
unredacted copies of the material provided to him by
Defendants. (See ECF No. 28 at 5.) Such discovery

disputes should be raised with the Magistrate Judge
and will not be resolved here.

8

V.

CONCLUSION

For the foregoing reasons, defendants’
motion for partial judgment on the pleadings
is granted in part and denied in part.
Specifically, plaintiff’s abuse of power and
conspiracy claims are dismissed as against all
defendants; all claims against the Nassau
County Police Department, Nassau County
District Attorney’s Office, and ADAs
Cunningham and Abdenour are dismissed;
and the prosecutorial misconduct claim
against Detective Rispoli is dismissed.
However, plaintiff’s motion to dismiss all
claims against Nassau County is denied. The
Magistrate Judge shall initiate discovery with
respect to the remaining claims.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: August 1, 2016
Central Islip, New York
*

*

*

Plaintiff proceeds pro se. Defendants are
represented by Ralph J. Reissman, Nassau
County Attorney’s Office, One West Street,
Mineola, NY 11501.

9