O'Neal v. Spota et al

Filing 60

ORDER granting 12 Motion to Dismiss for Failure to State a Claim. For the reasons stated herein, the County Defendants' motion to dismiss (ECF No. 12) is granted, and plaintiff's claims against them are dismissed with prejudice. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/12/2017. (Zbrozek, Alex)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 16-CV-579 (JFB) (GRB)
_____________________

BRONTIE O’NEAL,
Plaintiff,
VERSUS

THOMAS SPOTA, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
January 12, 2017
___________________

JOSEPH F. BIANCO, District Judge:
On January 29, 2016, plaintiff Brontie
O’Neal
(“plaintiff”),
proceeding pro
se and in forma pauperis, filed this action
against defendants Thomas Spota, Suffolk
County Municipality, East Hampton Town,
East Hampton Town Police, Marianne S.
Rantala, and Irene Foster. Plaintiff asserts
claims
for
malicious
prosecution,
defamation, slander, false arrest, and
ineffective assistance of counsel pursuant to
42 U.S.C. § 1983 (“Section 1983”). 1
Defendants Thomas Spota and Suffolk
County
Municipality
(the
“County
Defendants”) 2 now move to dismiss the

1

Plaintiff invokes only Section 1983 in his complaint,
but it is unclear whether he is also asserting any or all
of the claims under state law. As discussed infra, for
purposes of the instant motion, the Court declines to
exercise pendant jurisdiction over any state law claims
absent a viable federal cause of action.

claims against them pursuant to Federal Rule
of Civil Procedure 12(b)(6).
For the reasons set forth below, the
County Defendants’ motion is granted in its
entirety.
I. BACKGROUND
A. Facts
The following facts are taken from the
complaint and are not findings of fact by the
Court. Instead, the Court will assume the
facts to be true and, for purposes of the
pending motion to dismiss, will construe
them in a light most favorable to plaintiff as
2

The County Defendants correctly assert that the
County of Suffolk, rather than “Suffolk County
Municipality,” is the proper party in interest in this
case. (County Defs.’ Mem. of Law in Supp. of Mot.
to Dismiss Pursuant to Rule 12(b)96) [sic], ECF. No.
12-1, at 1.) Thus, the Court liberally construes the
complaint to be against the County of Suffolk.

counts of Assault in the Second Degree, in
violation of New York Penal Law § 120.05;
and one felony count of Grand Larceny in the
Fourth Degree, in violation of New York
Penal Law § 155.30 (ECF No. 41-1). The
Court accordingly lifted the stay and afforded
plaintiff an opportunity to file an additional
response (ECF No. 40), which he did on
December 2, 2016 (ECF No. 50).

the non-moving party. The Court limits its
analysis to the allegations pertaining to the
County Defendants.
Plaintiff’s claims stem from a criminal
proceeding, and he alleges that “Thomas
Spota defamed [his] character, slandered
[his] name and took part in [a] malicious
prosecution,” and that the “Suffolk County
Municipality is responsible for statements
that district attorneys made defaming
[plaintiff’s] character.” (Compl., ECF No.
1, ¶¶ 1-2.) In addition, plaintiff claims that
while he was incarcerated, he suffered a
fractured skull “[b]ecause the newspaper had
an article saying that [he] beat up an elderly
woman. So inmates jumped [plaintiff] and
put [him] in the hospital.” (Id. at 4.) Plaintiff
further alleges that his “good name and
reputation were also damaged.” (Id.)

II. STANDARD OF REVIEW

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 plaintiff. See Cleveland v. Caplaw
Enters., 448 F.3d 518, 521 (2d Cir. 2006).
“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.

B. Procedural History
Plaintiff commenced this action on
January 29, 2016. (ECF No. 1.) On April 27,
2016, the County Defendants filed a motion
to dismiss for failure to state a claim. (ECF
No. 12.) Plaintiff field his opposition on May
12, 2016 (“Pl.’s Br.,” ECF No. 13), and the
County Defendants filed their reply on June
8, 2016 (ECF No. 17). Plaintiff filed an
additional response on June 28, 2016. (ECF
No. 27.)

The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth two principles for a
district court to follow in deciding a motion
to dismiss. 556 U.S. 662 (2009). First,
district courts must “identify[] pleadings that,
because they are no more than conclusions,
are not entitled to the assumption of truth.”
Id. at 679. “While 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.

By Order dated August 15, 2016, the
Court stayed this action pending the
resolution of plaintiff’s underlying criminal
proceeding. (ECF No. 36.) The County
Defendants filed a letter on November 1,
2016, apprising the Court that plaintiff had
been “convicted in the prosecution for which
he sues” (ECF No. 39), and they
subsequently filed a copy of plaintiff’s
Uniform Sentence & Commitment, dated
October 20, 2016, which indicates that
plaintiff pled guilty in the New York County
Court for Suffolk County to four felony
2

motion to dismiss because there was
undisputed notice to plaintiffs of their
contents and they were integral to plaintiffs’
claim.”); Brodeur v. City of N.Y., No. 04 Civ.
1859, 2005 WL 1139908, at *2-3 (E.D.N.Y.
2005) (stating court could consider
documents within the public domain on a
Rule 12(b)(6) motion to dismiss).

Where, as here, the plaintiff is proceeding
pro se, “a court is obliged to construe his
pleadings liberally, particularly when they
allege civil rights violations.” McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004). Nevertheless, 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).

III. DISCUSSION
In their initial brief, the County
Defendants argue that (1) defendant Suffolk
County District Attorney Thomas Spota is
absolutely
immune
from
malicious
prosecution liability; (2) plaintiff fails to
plead a claim for defamation or slander
because (a) he does not claim that the alleged
conduct impaired a liberty interest, as is
required for a Section 1983 claim, and (b) the
complaint does not identify the purported
defamatory and false statement, allege that it
was published to a third party, assert that it
caused harm, or claim that the statement was
not privileged, as required for a cause of
action under New York law; and (3) if the
Court dismisses plaintiff’s federal claims, it
should decline to exercise pendant
jurisdiction over any remaining state law
claims.

The Court further 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 their November 1, 2016 letter
informing the Court of plaintiff’s conviction,
the County Defendants contend that plaintiff
cannot proceed with his malicious
prosecution cause of action because of the
Supreme Court’s decision in Heck v.
Humphrey, 512 U.S. 477 (1994), which
precludes a civil plaintiff from asserting
claims that would call into question the
lawfulness of a criminal conviction. They
further argue that, because plaintiff cannot
plead a federal Section 1983 claim, the Court
should decline to exercise pendant
jurisdiction and dismiss the remainder of the
complaint.

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 vacated
in part on other grounds sub nom. Dabit v.
Merrill Lynch, Pierce, Fenner & Smith, Inc.,
395 F.3d 25 (2d Cir. 2005), vacated on other
grounds, 547 U.S. 71 (2006); 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
3

prisoner seeks damages in a § 1983
suit, the district court must consider
whether a judgment in favor of the
plaintiff would necessarily imply the
invalidity of his conviction or
sentence; if it would, the complaint
must be dismissed unless the plaintiff
can demonstrate that the conviction or
sentence
has
already
been
invalidated. But if the district court
determines that the plaintiff’s action,
even if successful, will not
demonstrate the invalidity of any
outstanding
criminal
judgment
against the plaintiff, the action should
be allowed to proceed, in the absence
of some other bar to the suit.

As discussed below, the Court concludes
that Heck bars plaintiff’s malicious
prosecution claim, as well as his claims for
defamation and slander, to the extent that he
asserts those under Section 1983. Insofar as
plaintiff pleads a cause of action for
malicious prosecution and/or defamation and
slander under state law, the Court declines, in
its discretion, to exercise pendant jurisdiction
absent a viable federal claim. Accordingly,
the Court grants the County Defendants’
motion to dismiss the federal claims in its
entirety.
A. Applicable Law
In Heck v. Humphrey, the Supreme Court
“confronted the question of whether, given
the overlap between § 1983 and the federal
habeas corpus statute, a prisoner seeking civil
damages may proceed with a § 1983 claim
where success on the claim necessarily would
implicate the unconstitutionality of the
prisoner’s conviction or sentence.” Amaker
v. Weiner, 179 F.3d 48, 51 (2d Cir. 1999)
(citing Heck, 512 U.S. at 480-90).
Specifically, the Heck Court held:

Heck, 512 U.S. at 486-87 (footnotes omitted).
Accordingly, pursuant to Heck, courts
routinely dismiss claims of malicious
prosecution brought under Section 1983
when those claims pertain to a criminal
proceeding that resulted in a conviction. See,
e.g., Kevilly v. N.Y., 410 F. App’x 371, 375
(2d Cir. 2010); Jean-Laurent v. Hennessy,
No. 05CV1155 (JFB) (LB), 2008 WL
3049875, at *8-9 (E.D.N.Y. Aug. 1, 2008);
Younger v. City of New York, 480 F. Supp. 2d
723, 730 (S.D.N.Y. 2007).

[I]n order to recover damages for
allegedly unconstitutional conviction
or imprisonment, or for other harm
caused
by
actions
whose
unlawfulness would render a
conviction or sentence invalid,
a § 1983 plaintiff must prove that the
conviction or sentence has been
reversed on direct appeal, expunged
by executive order, declared invalid
by a state tribunal authorized to make
such determination, or called into
question by a federal court’s issuance
of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages
bearing that relationship to a
conviction or sentence that has not
been so invalidated is not cognizable
under § 1983. Thus, when a state

With respect to Section 1983 claims for
defamation or slander, even palpably false
statements by a governmental actor are not
cognizable if the only injury is to the
plaintiff’s reputation. See Paul v. Davis, 424
U.S. 693, 712 (1976) (“[A]ny harm or injury
to [a reputational] interest, even where . . .
inflicted by an officer of the State, does not
result in a deprivation of any ‘liberty’ or
‘property’ recognized by state or federal
law[.]”); Sadallah v. City of Utica, 383 F.3d
34, 38 (2d Cir. 2004) (“Defamation . . . is an
issue of state law, not of federal
constitutional law, and therefore provides an
insufficient basis to maintain a § 1983
action.”).
Governmental defamation is
4

actionable only if it falls within the so-called
“stigma plus” doctrine. See Sadallah, 383
F.3d at 38. “To prevail on a ‘stigma plus’
claim, a plaintiff must show (1) the utterance
of a statement sufficiently derogatory to
injure his or her reputation, that is capable of
being proved false, and that he or she claims
is false, and (2) a material state-imposed
burden or state-imposed alteration of the
plaintiff’s status or rights.” Id.

conviction and are thus barred under
[Heck].”); Wallace v. Speiget, No. 04-CV2821 (DGT), 2005 WL 1544811, at *1-2
(E.D.N.Y. July 1, 2005) (holding that Heck
precluded plaintiff’s Section 1983 claims for
malicious prosecution and slander).
B. Application
Here, the Heck rule unequivocally bars
plaintiff’s malicious prosecution claim
because it pertains to a criminal conviction
that has not been invalidated. Further,
although the complaint does not identify any
specific defamatory or slanderous statement,
plaintiff states in his opposition that “Thomas
Spota defamed [his] character and slandered
[his] name” by “telling the public that
[plaintiff] assaulted an [sic] 83 year old white
woman, which is a blatant lie.” (Pl.’s Br. at
1.) 3 Thus, it appears that the gravamen of
plaintiff’s defamation/slander claims is that
defendant Spota publicly accused him of the
offense to which plaintiff pled guilty, and
allowing those claims to proceed would
necessarily impair that conviction because
plaintiff would be required to prove the
falsity of those statements. 4 See Albert v.
Loksen, 239 F.3d 256, 265-66 (2d Cir. 2001)
(“The elements of a cause of action for
slander under New York law are (i) a
defamatory statement of fact, (ii) that is false
. . . .” (footnote omitted)).

However, as with malicious prosecution
claims, the Heck rule precludes Section 1983
causes of action for defamation or slander if
they would undermine a criminal conviction
or sentence. See Cormier v. Lafayette CityPar. Consol. Gov’t, 493 F. App’x 578, 584
(5th Cir. 2012) (holding that plaintiff could
not “satisfy this ‘stigma-plus-infringement’
requirement, however, because applying
Heck precludes using false arrest and
malicious
prosecution
as
predicate
infringement claims” for a defamation cause
of action); Channer v. Mitchell, 43 F.3d 786,
787 (2d Cir. 1994) (plaintiff could not
maintain Section 1983 claim that defendant
police officers committed perjury absent
invalidation of his conviction); Lane v.
Papadimitrious, No. 6:10-CV-647, 2010 WL
2803468, at *1 (N.D.N.Y. July 14, 2010)
(“Thus, plaintiff’s claims in the nature of
perjury, slander,
evidence-tampering,
conspiracy to bring unfounded criminal
charges against him, and false imprisonment
necessarily implicate the validity of his
3

As noted supra, in deciding a motion to dismiss,
courts may consider, inter alia, information in the
“motion papers if plaintiff has knowledge or
possession of the material and relied on it in framing
the complaint.” In re Merrill Lynch, 273 F. Supp. 2d
at 356-57; see also Scott v. City of White Plains, No.
10 CIV. 1887 (KBF), 2012 WL 1267873, at *8
(S.D.N.Y. Apr. 10, 2012) (“The Court may consider
admissions contained in [plaintiff’s] briefs (and the
exhibits thereto) on a motion to dismiss.” (citing
Purgess v. Sharrock, 33 F.3d 134, 144 (2d Cir. 1994)
(“A court can appropriately treat statements in briefs
as binding judicial admissions of fact”))).

4

Insofar as plaintiff is contesting statements made
during court proceedings, then absolute immunity
would also bar liability for those remarks. See Mosley
v. McIntosh, No. 08 CIV. 9635 (PKC), 2009 WL
1542546, at *3 (S.D.N.Y. May 29, 2009) (“[I]t is
firmly established that a prosecutor cannot be sued
under § 1983 on the basis of statements made in court
during criminal proceedings against a defendant.”
(citing, inter alia, Kalina v. Fletcher, 522 U.S. 118,
124-25 (1997))). Qualified immunity is available as a
defense for statements made to the press. See Buckley
v. Fitzsimmons, 509 U.S. 259, 278 (1993).

5

As a result, Heck also precludes
adjudication of those causes of action under
Section 1983. To the extent that plaintiff is
asserting pendant state claims for malicious
prosecution and/or defamation and slander,
the Court declines, in its discretion, to
exercise supplemental jurisdiction over those
claims given the dismissal of the federal
claims. See 28 U.S.C. § 1367(c)(3); United
Mine Workers of Am. v. Gibbs, 383 U.S. 715,
726 (1966); Kolari v. New York-Presbyterian
Hosp., 455 F.3d 118, 122 (2d Cir. 2006).

is granted, and plaintiff’s claims against them
are dismissed with prejudice. 5 The Court
certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Memorandum and
Order would not be taken in good faith, and
therefore, in forma pauperis status is denied
for the purpose of any appeal. See Coppedge
v. United States, 369 U.S. 438, 444-45
(1962).
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge

C. Leave to Amend
Although plaintiff has not requested leave
to submit an amended complaint, the Court
has considered whether he should be given an
opportunity to do so. 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) (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)(2).

Dated: January 12, 2017
Central Islip, NY

***
Plaintiff Brontie O’Neal, pro se, Ulster
Correctional
Facility,
P.O.
Box
800, Napanoch, New York 12458. The
County Defendants are represented by Arlene
S. Zwilling, Assistant County Attorney, on
behalf of Dennis M. Brown, Suffolk County
Attorney, H. Lee Dennison Building, P.O.
Box 6100, Hauppauge, New York 11788.

However, even under this liberal
standard, the defects in plaintiff’s complaint
are substantive and cannot be cured.
Accordingly, leave to re-plead is denied.
IV. CONCLUSION
For the foregoing reasons, the County
Defendants’ motion to dismiss (ECF No. 12)
5

Although the County Defendants did not raise this
argument in their submissions, plaintiff has also failed
to plead a claim against the “Suffolk County
Municipality,” i.e. Suffolk County, because he only
alleges that the “Suffolk County Municipality is
responsible for statements that district attorneys made
defaming [plaintiff’s] character.” (Compl. ¶ 2.)

However, under Monell v. Dep’t of Soc. Servs. of City
of New York, 436 U.S. 658, 694-95 (1978), a
municipal entity may be held liable under Section
1983 only where a plaintiff demonstrates that the
constitutional violation complained of was caused by
a municipal “policy or custom.” Respondeat superior
is not a cognizable theory of liability. Id. at 691.

6