Gianni v. New York State Police et al

Filing 19

MEMORANDUM-DECISION and ORDER - That Kopp and Foster's motion to dismiss (Dkt. No. 13) is GRANTED in part and Gianni's claims are DISMISSED as against Kopp and Foster in their official capacities. That Kopp and Foster's motion to dism iss (dkt. No. 13) is DENIED in part as against Kopp and Foster in their individual capacities. That Kopp and Foster file the appropriate responsive pleadings within the time alloted by the rules. That the parties notify Magistrate Judge Homer in order to schedule further proceedings in accordance with this order. Signed by Judge Gary L. Sharpe on 10/26/2011. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
SALVATORE F. GIANNI,
Plaintiff,

1:11-cv-498
(GLS/DRH)

v.
KEITH KOPP and EDWARD FOSTER,
Defendants.
____________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Salvatore F. Gianni
Pro Se
08-B-3671
Gowanda Correctional Facility
P.O. Box 311
Gowanda, NY 14070
FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Albany Office
The Capitol
Albany, NY 12224

CHARLES J. QUACKENBUSH
Assistant Attorney General

Gary L. Sharpe
District Court Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Salvatore F. Gianni commenced this action against

defendants Keith Kopp, a New York State Trooper, and Edward Foster, a
New York State Police Sergeant, asserting claims pursuant to 42 U.S.C. §
1983 for malicious prosecution, unlawful arrest and unlawful detention.
(Am. Compl. ¶ 5, Dkt. No. 14.) Pending is Kopp and Foster’s motion to
dismiss. (See Dkt. No. 13.) For the reasons that follow, the motion is
granted in part and denied in part.
II. Background1
A.

Factual History
On the evening of May 3, 2008, Gianni was arrested by the Town of

Clay Police Department following a motor vehicle accident. (Am. Compl. ¶
4(a)-(b), Dkt. No. 14.) The following morning, while still in custody, Gianni
was arrested by Trooper Kopp and charged with second degree Burglary
and first degree Criminal Contempt. (Id. ¶ 4(a).) The latter charges
stemmed from Gianni’s alleged May 3 “break[ing] into the home of Leah
Bella Gianni,” his then-reconciled wife, in violation of an “order of
protection.” (Id. ¶ 4(c).) Trooper Kopp based his arrest on the
“depositions” of witnesses, including Leah Bella Gianni. (Id. ¶ 4(d)(D).)

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The facts are drawn from plaintiff’s Amended Complaint and presented in a light most
favorable to him. (See Am. Compl., Dkt. No. 14.)

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Gianni alleges that during the course of his investigation, Trooper
Kopp “deliberately ignored his responsibility to act in good faith” by taking a
number of intentional actions which resulted in Gianni’s unlawful arrest. (Id.
¶ 4(d).) First, Trooper Kopp failed to take a statement from Gianni despite
the fact that Gianni: showed him both keys to the home; explained
repeatedly that he resided there; insisted that Leah Bella was lying to cover
up an affair; and offered to provide Trooper Kopp with a lease to the
apartment and a modified partial order of protection showing that he was a
legal resident of the home in question. (Id. ¶ 4(d)(A).) Furthermore, Gianni
alleges that Trooper Kopp “intentionally” failed to question neighbors,
complex management and his parents regarding the incident. (Id. ¶ 4(d).)

Following Gianni’s arrest, his father Anthony J. Gianni contacted
Sergeant Edward Foster and informed him that an erroneous and
incomplete investigation had been performed in his son’s case, and
implored Sergeant Foster to contact the district attorney and recommend
dismissal. (Id. ¶ 4(f).) Anthony Gianni further requested that Sergeant
Foster file charges against Jason Michalovich, whom he alleged assaulted
Gianni on May 3. (Id.) Explaining that he believed that Trooper Kopp
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performed a satisfactory investigation, Sergeant Foster declined to honor
Anthony Gianni’s requests. (Id.) Plaintiff Gianni subsequently wrote to
Sergeant Foster and reiterated his father’s contentions, but Sergeant
Foster did not respond to Gianni’s letter. (Id. ¶ 4(g).)
Gianni alleges that the charges of Burglary and Criminal Contempt
were used against him on three occasions: (1) during a probation
revocation hearing; (2) during a re-sentencing hearing; and (3) in relation to
an August 2, 2011 denial of release by the Division of Parole. (Id. ¶ 4(i),
(e).) Gianni claims further that both the Burglary and Criminal Contempt
charges brought against him on May 4, 2008 were subsequently dismissed
and that he is currently incarcerated on unrelated DWI, Criminal Contempt
and Unlicensed Operation charges. (Am. Compl., Dkt. No. 14 at 5; Dkt.
No. 17 at 1-2, 12.)
B.

Procedural History
Plaintiff Gianni commenced this action on May 2, 2011, alleging

violations of his constitutional rights under the Fourth and Fourteenth
Amendments. (Dkt. No. 1.) Following defendants’ August 26, 2011 motion
to dismiss, Gianni filed an Amended Complaint which removed the New
York State Police as a defendant and articulated claims under 42 U.S.C. §
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1983 of malicious prosecution, unlawful arrest and unlawful seizure. (Dkt.
Nos. 13, 14.) On September 21, 2011, defendants moved by letter
requesting that their August 26 motion to dismiss be considered against
Gianni’s Amended Complaint. (Dkt. No. 15.) Magistrate Judge Homer
granted defendants’ letter motion on September 26, 2011. (Dkt. No. 16.)
III. Standard of Review
The standard of review under Federal Rules of Civil Procedure
12(b)(6) is well established and will not be repeated here.2 For a full
discussion of the standard, the court refers the parties to its previous
opinion in Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 218
(N.D.N.Y. 2010).
IV. Discussion
A.

Eleventh Amendment Immunity
Kopp and Foster argue that the Eleventh Amendment provides them

with immunity in their official capacities from Gianni’s claims. (Dkt. No. 13
at 5.) The court agrees.
The Eleventh Amendment shields states and their agencies,

2

Because Gianni is proceeding pro se, the court will construe his Complaint liberally.
See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)

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departments, and officials in their official capacities from suit in federal
court, regardless of the relief sought. See Papasan v. Allain, 478 U.S. 265,
276 (1986). This immunity gives way in only three circumstances: (1)
where it is waived by the state; (2) where it has been abrogated by
Congress, see Kentucky v. Graham, 473 U.S. 159, 169 (1985); and (3)
where a state official is sued in her official capacity for prospective
injunctive relief, see Ex parte Young, 209 U.S. 123, 157 (1908). Because
Gianni’s claims do not fall within any of these recognized exceptions, Kopp
and Foster’s motion is granted and all claims against them in their official
capacities are dismissed.
B.

Malicious Prosecution
Kopp and Foster seek dismissal of Gianni’s malicious prosecution

claim on the following grounds: (1) lack of personal involvement; (2) failure
to plausibly plead malice; (3) failure to plausibly plead the absence of
probable cause; and (4) the fact that Gianni was convicted on the charge of
Criminal Contempt in the first degree.3 (Dkt. No. 13 at 6-8.) The court

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While defendants allege that Gianni was indicted and convicted of Criminal Contempt,
they admit that they do not “presently know[] whether plaintiff was ever indicted upon the
Burglary charge.” (Dkt. No. 13 at 8.) It should be noted that Heck v. Humphrey, 512 U.S. 477,
486-89 (1994) would bar this suit should Gianni fail to demonstrate that the proceedings were
terminated in his favor or that his conviction was “reversed, expunged, invalidated, or
impugned by the grant of a writ of habeas corpus.”

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disagrees that dismissal is warranted. In light of the liberal construction
afforded him, Gianni has satisfied his pleading burden at this juncture.
Accordingly, Kopp and Foster’s motion to dismiss is denied with leave to
renew on a more complete record.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Kopp and Foster’s motion to dismiss (Dkt. No. 13) is
GRANTED in part and Gianni’s claims are DISMISSED as against Kopp
and Foster in their official capacities; and it is further
ORDERED that Kopp and Foster’s motion to dismiss (Dkt. No. 13) is
DENIED in part as against Kopp and Foster in their individual capacities;
and it is further
ORDERED that Kopp and Foster file the appropriate responsive
pleadings within the time allotted by the rules; and it is further
ORDERED that the parties notify Magistrate Judge Homer in order to
schedule further proceedings in accordance with this order; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
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October 26, 2011
Albany, New York

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