Terwilliger et al v. McLeod et al

Filing 29

ORDER: It is ordered that defendants Scott Alston and Michael S. Hilla's # 13 Motion for Judgment on the Pleadings is GRANTED and the plaintiff's Complaint is hereby DISMISSED as against both defendants in accordance with the Court's decision, which is attached hereto and made a part hereof. Signed by Senior Judge Thomas J. McAvoy on 5/21/2013. (jmb)

At a Motion Term of the United States District
Court for the Northern District of New York at the
United States District Courthouse, 15 Henry St.,
Binghamton, New York on April 26, 2013
PRESENT: HON. THOMAS J. MCAVOY
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
REBEKAH TERWILLIGER, as Natural Parent and
Guardian of DT, an Infant and DANA ECHAURI,
as Natural Parent and Guardian of VO, an Infant,
Plaintiffs,
v.

ORDER
Civil Action No. 3:12-CV-1750

SUZANNE McLEOD, Superintendent of Schools for
Union-Endicott Central School District, Individually
and in her Official Capacity, ANNMARIE FOLEY,
Principal of Jennie F. Snapp Middle School, Individually
and in her Official Capacity, SCOTT ALSTON, Detective
for the Endicott Police Department and MICHAEL S.
HILLA, Juvenile Officer for the Endicott Police
Department, Individually and in his Official Capacity,
Defendants.
_____________________________________________
Defendants, Scott Alston and Michael S. Hilla having filed a Notice of Motion for Judgment
on the Pleadings pursuant to FRCP 12(c) dated March 17, 2013, together with Attorney’s
Affirmation, Memorandum of Law and exhibits thereto, and the Plaintiffs, Rebekah Terwilliger and
Dana Echauri, as natural parents and guardians of DT and VO, respectively, having filed a
Memorandum of Law in Response to the Defendants’ Motion dated April 2, 2013, together with all
attachments thereto, and the Defendants having filed a Reply Memorandum of Law,

NOW, upon reading and filing the Notice of Motion, Memorandum of Law in Support of
Defendants’ Motion for Judgment on the Pleadings, Attorney’s Affirmation of Kevin G. Martin, all
dated March 17, 2013, and the Reply Memorandum of Law dated April 7, 2013, together with all
the attachments thereto, all filed by Defendants Scott Alston and Michael S. Hilla in support of the
motion, and the Memorandum of Law in Response to the Defendants’ Motion dated April 2, 2013,
together with the attachments thereto filed by Plaintiffs Rebekah Terwilliger and Dana Echauri n
opposition to the motion, and the parties having appeared in this Court for oral argument on April
26, 2013 by their attorneys Kevin G. Martin, Esq., Martin & Rayhill, P.C. for the moving
Defendants, and The Law Office of Ronald Benjamin, Amy Chambers, Esq., of counsel, for the
Plaintiffs, it is hereby
ORDERED, that the Defendants Scott Alston and Michael S. Hilla’s motion for judgment
on the pleadings pursuant to FRCP 12(c) is GRANTED and the Plaintiffs’ Complaint is
DISMISSED as against the moving Defendants Scott Alston and Michael S. Hilla in accordance
with the Court’s Decision, which is attached hereto and made a part hereof.
ENTER
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Dated: May ___, 2013
____________________________________
_______ __________________________
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HON. THOMAS J. MCAVOY
A
AS
DISTRICT
SENIOR DISTRICT JUDGE
T

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF NEW YORK

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---------------------------------------------------------

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REBEKAH TERWILLIGER, ET AL

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-versus-

12-CV-1750

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SUZANNE MCLEOD, ET AL

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---------------------------------------------------------

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TRANSCRIPT OF MOTION DECISION

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held in and for the United States District Court, Northern

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District of New York, at the Federal Building, 15 Henry St.,

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Binghamton, New York, on FRIDAY, April 26, 2013, before

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the HON. THOMAS J. McAVOY, Senior United States District

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Court Judge, PRESIDING.

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APPEARANCES:

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FOR THE PLAINTIFFS:

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LAW OFFICE OF RONALD BENJAMIN

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BY:

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Binghamton, New York

AMY CHAMBERS, ESQ.

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FOR THE DEFENDANTS:

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MARTIN & RAYHILL PC

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BY:

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Utica, New York

KEVIN G. MARTIN, ESQ.

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Vicky Ann Theleman, RPR, CRR
USDC Court Reporter

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Terwilliger vs Mcleod
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(In open Court)

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(Whereupon oral argument was had -

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not transcribed)

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THE COURT:

All right.

The defendants Alston

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and Hilla move to dismiss the claims against them pursuant to

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Rule 12(c)for a grant of qualified immunity on any claims not

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dismissed or for abstention pursuant to Younger and Colorado

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River.

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Rule 12(c) motions are decided under the Rule

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12(b)(6) standard.

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obtain sufficient factual allegations to make out plausible

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claims for relief.

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1937 at 1949.

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allegations, threadbare recitals of a cause of action, and

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mere conclusory statements are insufficient.

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Rule 12(b)(6) requires the complaint to

See Ashcroft vs Iqbal, 129 Supreme Court

Legal conclusions unsupported by factual

Iqbal 149.

The complaint alleges violations of

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plaintiffs' constitutional rights and clearly defines how

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these rights have been violated.

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that the complainant's allegations support claims for other

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constitutional violations, including the First Amendment.

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The Court will review the allegations to determine what

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potential claims have been pled.

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Further, plaintiffs argue

Plaintiffs allege that defendants Alston and
Vicky Ann Theleman, RPR, CRR
USDC Court Reporter

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Terwilliger vs Mcleod
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Hilla interrogated them without advising them of their

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constitutional right to counsel.

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constitutional rights protected by Miranda versus Arizona.

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While Broome County Family Court Judge Pines addressed DT's

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alleged Miranda violation, he did not address the same claim

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by VO.

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actionable under Section 1983.

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316 Fed 3d 128 at 138.

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Safir, 156 Fed 3d 340, 346.

This invokes the

Nevertheless, a Miranda violation by itself is not
See Jocks v Tavernier,

Deshawn E by Charlotte E versus
See also Neighbour versus

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Covert, 68 Fed 3d 1508 at 1510 through 1511.

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based upon a denial of Miranda warnings is dismissed.

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Thus, any claim

The allegation also raises, potentially, Sixth

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Amendment denial of counsel claims.

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fail because an individual's Sixth Amendment right to counsel

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attaches only at or after the time that adversary judicial

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proceedings have been initiated against him.

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Illinois, 406 US 682 at 688.

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However, such claims

Kirby versus

Under New York law, adversary judicial

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proceedings are commenced by the filing of an accusatory

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instrument.

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five.

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of juvenile delinquency at the time of their questioning,

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their Sixth Amendment right had not attached.

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City of New York, 199 Westlaw 500140 at star eight.

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Brown v Martin, 2004 Westlaw 1774328 at star

Because plaintiffs had not been charged with any acts

Contes versus

Thus, any claim based upon the Sixth Amendment
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USDC Court Reporter

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is dismissed.

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The complaint also alleges that DT's

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constitutional rights were violated when Officer Hilla

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coerced him to make a false confession.

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Fifth Amendment, applicable to the states through the

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Fourteenth Amendment, which provides that a person shall not

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be compelled in any criminal case to be a witness against

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himself.

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This implicates the

As indicated, the simple failure to advise DT

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of his Fifth Amendment rights by a Miranda warning does not

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form the basis of an actionable 1983 claim.

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Section 1983 action may exist under the Fifth Amendment's

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self-incrimination clause if coercion was applied to obtain

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an inculpatory statement and the statement was used against

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the plaintiff in a criminal proceeding.

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Martinez, 538 US 760, 766.

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527 at 536.

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However, a

See Chavez versus

Weaver versus Brenner, 40 Fed 3d

Judge Pines' decision did not address the

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voluntariness of DT's statement, only whether it was made

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during a custodial interrogation.

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that constitutionally offensive coercion could be applied in

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a non-custodial setting during which the parties were free to

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leave, the Court need not address the question of

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plausibility.

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DT's statement has been used against him in the Family Court

While it seems unlikely

This is because it has not been asserted that

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USDC Court Reporter

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Article 3 proceeding.

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Consequently, the claim is premature and must

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be dismissed.

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repleading consistent, of course, with the obligations

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imposed by Federal Rule of Civil Procedure 11.

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The dismissal is without prejudice to

Plaintiffs also assert that they've pled

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actionable substantive due process claims.

A Fourteenth

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Amendment substantive due process claim may be established

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when there is proof of actual coercion from outrageous

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government misconduct, even if the confession is not used

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against the declarant.

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Appendix 64 at 66.

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process clause of the Fourteenth Amendment prohibits

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self-incrimination based on fear, torture or any other type

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of coercion.

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Gardner versus McArdle, 461 Federal

Deshawn E at 348.

In this regard the due

Deshawn E at 348.
The pertinent question on a substantive due

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process claim is whether the conduct of law enforcement

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officials was such to overbear the plaintiffs' will to resist

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and bring about a confession that was not freely

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self-determined.

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must be the kind of misbehavior that so shocks the

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sensibility of civilized society as to warrant a federal

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intrusion into the criminal processes of the States.

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versus Burbine, 475 US at 412.

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4933 and 434.

Deshawn E at 348.

The challenged conduct

I'm sorry.

Vicky Ann Theleman, RPR, CRR
USDC Court Reporter

Moran

475 US 412 at

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Terwilliger vs Mcleod
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When the questioning of a juvenile is

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involved, the Court looks to factors such as the length of

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the questioning, whether the juvenile was accompanied by a

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parent, whether Miranda warnings were issued to the juvenile

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and his parent, whether the juvenile was in an extremely

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emotional state, whether the juvenile was in a weakened

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emotional state, and whether the juvenile had a diminished

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mental or cognitive capacity.

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See Deshawn E at 348.

Although plaintiffs allege they were not

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advised of their right to counsel and characterize the manner

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of questioning as that reserved for hardened criminals, they

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have not alleged specific facts establishing the hallmarks of

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a substantive due process claim.

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questioning lasted well over an hour, did not take place in a

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special interrogation room as required by the Family Court

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Act, and that Officer Hilla repeatedly asked DT if he made

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the threat, do not amount to the kind of police misbehavior

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that shocks the sensibilities of civilized society.

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their characterization of the manner of the interrogation

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does not provide plausible factual allegations of outrageous

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police conduct.

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Their allegations that the

Further,

Accordingly, any substantive due process claim
is dismissed.
Plaintiffs also seemingly assert claims for
malicious prosecution.

To satisfy a Section 1983 claim for

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malicious prosecution, plaintiffs must demonstrate, one, the

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defendants commenced or continued criminal proceedings

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against them; two, the proceedings were terminated in

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plaintiff's favor; three, no probable cause existed for the

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proceeding; four, the defendants instituted the proceedings

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with malice; and five, each suffered a sufficient

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post-arraignment liberty restraint to implicate the

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plaintiffs' Fourth Amendment rights.

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704 3d 105 at 111 and 112.

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Swartz versus Insogna,

Plaintiffs have not pled that either of their

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Family Court proceedings terminated in their favors, and it's

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undisputed the proceedings are currently ongoing.

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Accordingly, the malicious prosecution claims

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are dismissed without prejudice to repleading if favorable

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determinations are obtained.

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address the remaining elements of the 1983 malicious

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prosecution claims as pertaining to both defendants.

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If repled, the Court will then

Plaintiffs also argue that the complaint

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asserts First Amendment claims.

This appears to be based on

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the contention that defendants instigated Family Court

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proceedings to coerce plaintiffs to withdraw the Supreme

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Court action and their appeals to the Commissioner of

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Education.

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withdrew neither action, and because there are no allegations

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that defendants' actions chilled plaintiffs' exercise of

Such claims are fatally flawed because plaintiffs

Vicky Ann Theleman, RPR, CRR
USDC Court Reporter

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their First Amendment rights.

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344 Fed 3d 282 at 287.

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See Scott versus Coughlin,

Further, there are no plausible factual

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allegations establishing a causal connection between the

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Supreme Court action or the appeal to the Commissioner of

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Education and the moving defendants' actions.

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defendants had no legal interest in the Supreme Court action

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or the school disciplinary action.

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allegation of a conspiracy fails to provide sufficient

The moving

Plaintiffs' conclusory

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factual allegations to make out a plausible claim in this

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regard.

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111.

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See Webb versus Goord, 340 Fed 3d 105 at 110 and

Accordingly, any First Amendment claims
against the moving defendants are dismissed.
Because the Court finds no cognizable claims,

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there is no reason to reach defendants' arguments for

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qualified immunity or abstention.

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In conclusion, the defendants' motion is

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granted and all claims against them are dismissed consistent

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with what I've already iterated in this decision.

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Defense counsel should submit a proposed order
on notice to plaintiffs within two weeks of today's date.

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Thank you both.

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MR. MARTIN:

Thank you, your Honor.

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Vicky Ann Theleman, RPR, CRR
USDC Court Reporter

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Terwilliger vs Mcleod
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THE COURT:

Court stands adjourned in this

matter.
(Court stands adjourned)
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Vicky Ann Theleman, RPR, CRR
USDC Court Reporter

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C E R T I F I C A T I O N

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I, VICKY A. THELEMAN, RPR, CRR, United

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States Court Reporter in and for the United States

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District Court, Northern District of New York, do

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hereby certify that I attended at the time and place

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set forth in the heading hereof; that I did make a

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stenographic record of the proceedings had in this

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matter and cause the same to be transcribed; that

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the foregoing is a true and correct copy of the same

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and the whole thereof.

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/s/ Vicky A. Theleman

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VICKY A. THELEMAN, RPR, CRR

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United States Court Reporter

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US District Court - NDNY

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Dated:

May 8, 2013.

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Vicky Ann Theleman, RPR, CRR
USDC Court Reporter