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)

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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 21 Dated: May ___, 2013 ____________________________________ _______ __________________________ _____ _ ____ _ ____ ____ __ _ ___ __ HON. THOMAS J. MCAVOY A AS DISTRICT SENIOR DISTRICT JUDGE T 2 1 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF NEW YORK 3 --------------------------------------------------------- 4 REBEKAH TERWILLIGER, ET AL 5 -versus- 12-CV-1750 6 SUZANNE MCLEOD, ET AL 7 --------------------------------------------------------- 8 TRANSCRIPT OF MOTION DECISION 9 held in and for the United States District Court, Northern 10 District of New York, at the Federal Building, 15 Henry St., 11 Binghamton, New York, on FRIDAY, April 26, 2013, before 12 the HON. THOMAS J. McAVOY, Senior United States District 13 Court Judge, PRESIDING. 14 15 APPEARANCES: 16 FOR THE PLAINTIFFS: 17 LAW OFFICE OF RONALD BENJAMIN 18 BY: 19 Binghamton, New York AMY CHAMBERS, ESQ. 20 21 FOR THE DEFENDANTS: 22 MARTIN & RAYHILL PC 23 BY: 24 Utica, New York KEVIN G. MARTIN, ESQ. 25 Vicky Ann Theleman, RPR, CRR USDC Court Reporter 2 Terwilliger vs Mcleod 1 (In open Court) 2 (Whereupon oral argument was had - 3 not transcribed) 4 - - - - - - 5 6 THE COURT: All right. The defendants Alston 7 and Hilla move to dismiss the claims against them pursuant to 8 Rule 12(c)for a grant of qualified immunity on any claims not 9 dismissed or for abstention pursuant to Younger and Colorado 10 River. 11 Rule 12(c) motions are decided under the Rule 12 12(b)(6) standard. 13 obtain sufficient factual allegations to make out plausible 14 claims for relief. 15 1937 at 1949. 16 allegations, threadbare recitals of a cause of action, and 17 mere conclusory statements are insufficient. 18 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 19 plaintiffs' constitutional rights and clearly defines how 20 these rights have been violated. 21 that the complainant's allegations support claims for other 22 constitutional violations, including the First Amendment. 23 The Court will review the allegations to determine what 24 potential claims have been pled. 25 Further, plaintiffs argue Plaintiffs allege that defendants Alston and Vicky Ann Theleman, RPR, CRR USDC Court Reporter 3 Terwilliger vs Mcleod 1 Hilla interrogated them without advising them of their 2 constitutional right to counsel. 3 constitutional rights protected by Miranda versus Arizona. 4 While Broome County Family Court Judge Pines addressed DT's 5 alleged Miranda violation, he did not address the same claim 6 by VO. 7 actionable under Section 1983. 8 316 Fed 3d 128 at 138. 9 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 10 Covert, 68 Fed 3d 1508 at 1510 through 1511. 11 based upon a denial of Miranda warnings is dismissed. 12 Thus, any claim The allegation also raises, potentially, Sixth 13 Amendment denial of counsel claims. 14 fail because an individual's Sixth Amendment right to counsel 15 attaches only at or after the time that adversary judicial 16 proceedings have been initiated against him. 17 Illinois, 406 US 682 at 688. 18 However, such claims Kirby versus Under New York law, adversary judicial 19 proceedings are commenced by the filing of an accusatory 20 instrument. 21 five. 22 of juvenile delinquency at the time of their questioning, 23 their Sixth Amendment right had not attached. 24 City of New York, 199 Westlaw 500140 at star eight. 25 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 Vicky Ann Theleman, RPR, CRR USDC Court Reporter 4 Terwilliger vs Mcleod 1 is dismissed. 2 The complaint also alleges that DT's 3 constitutional rights were violated when Officer Hilla 4 coerced him to make a false confession. 5 Fifth Amendment, applicable to the states through the 6 Fourteenth Amendment, which provides that a person shall not 7 be compelled in any criminal case to be a witness against 8 himself. 9 This implicates the As indicated, the simple failure to advise DT 10 of his Fifth Amendment rights by a Miranda warning does not 11 form the basis of an actionable 1983 claim. 12 Section 1983 action may exist under the Fifth Amendment's 13 self-incrimination clause if coercion was applied to obtain 14 an inculpatory statement and the statement was used against 15 the plaintiff in a criminal proceeding. 16 Martinez, 538 US 760, 766. 17 527 at 536. 18 However, a See Chavez versus Weaver versus Brenner, 40 Fed 3d Judge Pines' decision did not address the 19 voluntariness of DT's statement, only whether it was made 20 during a custodial interrogation. 21 that constitutionally offensive coercion could be applied in 22 a non-custodial setting during which the parties were free to 23 leave, the Court need not address the question of 24 plausibility. 25 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 Vicky Ann Theleman, RPR, CRR USDC Court Reporter 5 Terwilliger vs Mcleod 1 Article 3 proceeding. 2 Consequently, the claim is premature and must 3 be dismissed. 4 repleading consistent, of course, with the obligations 5 imposed by Federal Rule of Civil Procedure 11. 6 The dismissal is without prejudice to Plaintiffs also assert that they've pled 7 actionable substantive due process claims. A Fourteenth 8 Amendment substantive due process claim may be established 9 when there is proof of actual coercion from outrageous 10 government misconduct, even if the confession is not used 11 against the declarant. 12 Appendix 64 at 66. 13 process clause of the Fourteenth Amendment prohibits 14 self-incrimination based on fear, torture or any other type 15 of coercion. 16 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 17 process claim is whether the conduct of law enforcement 18 officials was such to overbear the plaintiffs' will to resist 19 and bring about a confession that was not freely 20 self-determined. 21 must be the kind of misbehavior that so shocks the 22 sensibility of civilized society as to warrant a federal 23 intrusion into the criminal processes of the States. 24 versus Burbine, 475 US at 412. 25 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 6 Terwilliger vs Mcleod 1 When the questioning of a juvenile is 2 involved, the Court looks to factors such as the length of 3 the questioning, whether the juvenile was accompanied by a 4 parent, whether Miranda warnings were issued to the juvenile 5 and his parent, whether the juvenile was in an extremely 6 emotional state, whether the juvenile was in a weakened 7 emotional state, and whether the juvenile had a diminished 8 mental or cognitive capacity. 9 See Deshawn E at 348. Although plaintiffs allege they were not 10 advised of their right to counsel and characterize the manner 11 of questioning as that reserved for hardened criminals, they 12 have not alleged specific facts establishing the hallmarks of 13 a substantive due process claim. 14 questioning lasted well over an hour, did not take place in a 15 special interrogation room as required by the Family Court 16 Act, and that Officer Hilla repeatedly asked DT if he made 17 the threat, do not amount to the kind of police misbehavior 18 that shocks the sensibilities of civilized society. 19 their characterization of the manner of the interrogation 20 does not provide plausible factual allegations of outrageous 21 police conduct. 22 23 24 25 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 Vicky Ann Theleman, RPR, CRR USDC Court Reporter 7 Terwilliger vs Mcleod 1 malicious prosecution, plaintiffs must demonstrate, one, the 2 defendants commenced or continued criminal proceedings 3 against them; two, the proceedings were terminated in 4 plaintiff's favor; three, no probable cause existed for the 5 proceeding; four, the defendants instituted the proceedings 6 with malice; and five, each suffered a sufficient 7 post-arraignment liberty restraint to implicate the 8 plaintiffs' Fourth Amendment rights. 9 704 3d 105 at 111 and 112. 10 Swartz versus Insogna, Plaintiffs have not pled that either of their 11 Family Court proceedings terminated in their favors, and it's 12 undisputed the proceedings are currently ongoing. 13 Accordingly, the malicious prosecution claims 14 are dismissed without prejudice to repleading if favorable 15 determinations are obtained. 16 address the remaining elements of the 1983 malicious 17 prosecution claims as pertaining to both defendants. 18 If repled, the Court will then Plaintiffs also argue that the complaint 19 asserts First Amendment claims. This appears to be based on 20 the contention that defendants instigated Family Court 21 proceedings to coerce plaintiffs to withdraw the Supreme 22 Court action and their appeals to the Commissioner of 23 Education. 24 withdrew neither action, and because there are no allegations 25 that defendants' actions chilled plaintiffs' exercise of Such claims are fatally flawed because plaintiffs Vicky Ann Theleman, RPR, CRR USDC Court Reporter 8 Terwilliger vs Mcleod 1 their First Amendment rights. 2 344 Fed 3d 282 at 287. 3 See Scott versus Coughlin, Further, there are no plausible factual 4 allegations establishing a causal connection between the 5 Supreme Court action or the appeal to the Commissioner of 6 Education and the moving defendants' actions. 7 defendants had no legal interest in the Supreme Court action 8 or the school disciplinary action. 9 allegation of a conspiracy fails to provide sufficient The moving Plaintiffs' conclusory 10 factual allegations to make out a plausible claim in this 11 regard. 12 111. 13 14 15 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, 16 there is no reason to reach defendants' arguments for 17 qualified immunity or abstention. 18 In conclusion, the defendants' motion is 19 granted and all claims against them are dismissed consistent 20 with what I've already iterated in this decision. 21 22 Defense counsel should submit a proposed order on notice to plaintiffs within two weeks of today's date. 23 Thank you both. 24 MR. MARTIN: Thank you, your Honor. 25 Vicky Ann Theleman, RPR, CRR USDC Court Reporter 9 Terwilliger vs Mcleod 1 2 3 4 THE COURT: Court stands adjourned in this matter. (Court stands adjourned) - - - - - 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Vicky Ann Theleman, RPR, CRR USDC Court Reporter 10 1 C E R T I F I C A T I O N 2 3 4 I, VICKY A. THELEMAN, RPR, CRR, United 5 States Court Reporter in and for the United States 6 District Court, Northern District of New York, do 7 hereby certify that I attended at the time and place 8 set forth in the heading hereof; that I did make a 9 stenographic record of the proceedings had in this 10 matter and cause the same to be transcribed; that 11 the foregoing is a true and correct copy of the same 12 and the whole thereof. 13 14 15 /s/ Vicky A. Theleman 16 VICKY A. THELEMAN, RPR, CRR 17 United States Court Reporter 18 US District Court - NDNY 19 20 21 Dated: May 8, 2013. 22 23 24 25 Vicky Ann Theleman, RPR, CRR USDC Court Reporter

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