Hillary v. St. Lawrence County et al

Filing 170

MEMORANDUM-DECISION AND ORDER - That Rain's #105 motion to dismiss is GRANTED. That Jones' #133 motion to dismiss is GRANTED. That the Clerk shall terminate defendants Rain and Jones from this action. Signed by Senior Judge Gary L. Sharpe on 10/14/2020. (jel, )

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ORAL NICHOLAS HILLARY,
Plaintiff,

8:17-cv-659
(GLS/DJS)

v.
MARY E. RAIN et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Barket, Epstein & Kearon Aldea &
LoTurco, LLP
666 Old Country Road, Suite 700
Garden City, NY 11530
Office of Mani C. Tafari
445 Hollow Road, Suite 25
Melville, NY 11747
FOR THE DEFENDANTS:
Mary E. Rain
Dreyer Boyajian LLP
75 Columbia Street
Albany, NY 12210
John E. Jones
Hancock Estabrook, LLP
1800 AXA Tower I
100 Madison Street
Syracuse, NY 13202
Village of Potsdam, Village of

ALEXANDER ROBERT KLEIN,
ESQ.
BRUCE A. BARKET, ESQ.
DONNA ALDEA, ESQ.
MANI C. TAFARI, ESQ.

JAMES R. PELUSO, JR., ESQ.
JOSHUA R. FRIEDMAN, ESQ.
WILLIAM J. DREYER, ESQ.

JOHN L. MURAD, JR., ESQ.
CHRISTOPHER HALL, ESQ.

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Potsdam Police Department,
& Mark Murray
Johnson Laws, LLC
646 Plank Road, Suite 205
Clifton Park, NY 12065

GREGG T. JOHNSON, ESQ.
APRIL J. LAWS, ESQ.
COREY A. RUGGIERO, ESQ.
LORAINE CLARE JELINEK, ESQ.

Unidentified Jane/John Doe
Village Of Potsdam Employees
#31-40

NO APPEARANCES

Onondaga County &
William Fitzpatrick
Onondaga County Department
of Law
John H. Mulroy Civic Center
421 Montgomery Street, 10th Floor
Syracuse, NY 13202

JOHN E. HEISLER, JR., ESQ.

Unidentified Jane/John Doe #41-50
New York State Police Employees

NO APPEARANCES

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Oral Nicholas Hillary brings this action against defendants
Mary E. Rain, John E. Jones, Village of Potsdam, Village of Potsdam
Police Department, Mark Murray, Onondaga County, William Fitzpatrick,
John and Jane Doe defendants, and other defendants that have since

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been dismissed, alleging violations of his First, Fourth, and Fourteenth
Amendment rights pursuant to New York State law and 42 U.S.C. § 1983.
(Compl., Dkt. No. 1.) Pending are Rain’s motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6) and (c), (Dkt. No. 105), and Jones’ motion for
judgment on the pleadings, (Dkt. No. 133). For the following reasons, both
motions are granted.
II. Background
The court assumes the parties’ familiarity with the underlying facts,
which are stated in full in the court’s February 28, 2019
Memorandum-Decision and Order. (Dkt. No. 83 at 4-12.)
III. Standards of Review
The standard of review under Fed. R. Civ. P. 12(b)(6) and Rule 12(c),
which is identical to that of a Rule 12(b)(6) motion, see Patel v.
Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2nd Cir. 2001)
(internal citations omitted), is well settled and will not be repeated here.
For a full discussion of the standard, the court refers the parties to its prior
decision in Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 218
(N.D.N.Y. 2010).
IV. Discussion
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A.

Rain’s Motion
Rain moves to dismiss Hillary’s complaint in its entirety as against

her. (Dkt. No. 105, Attach. 1.) In response, Hillary opposes Rain’s motion
only as to his third and sixth causes of action against Rain: a Section 1983
conspiracy claim, and a Section 1983 violation of the Equal Protection
Clause of the Fourteenth Amendment. (Dkt. No. 110 at 5-14.)
Accordingly, in light of Hillary’s concession, the following claims are
dismissed as against Rain: false arrest; malicious prosecution; fabrication
of evidence; failure to disclose exculpatory evidence; retaliatory
prosecution in violation of the First Amendment; due process and
stigma-plus defamation; municipal and corporate liability; supervisor
liability; negligent hiring, training, supervision, and retention; false
imprisonment/false arrest; and abuse of process. (Compl.
¶¶ 174-79, 180-94, 209-15, 216-21, 228-33, 234-40, 241-49, 250-55,
256-65, 266-71, 272-80); see Johnson v. Lew, No. 1:13-CV-1072, 2015
WL 4496363, at *5 & n.6 (N.D.N.Y. July 23, 2015).
1.

Prosecutorial Immunity

Rain contends that she is entitled to absolute prosecutorial immunity
as to Hillary’s claims because the conduct that serves as a basis for these
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claims relates to actions taken within the scope of her prosecutorial
function as St. Lawrence County District Attorney. (Dkt. No. 105, Attach. 1
at 4.) In response, Hillary argues that “Rain’s joinder in . . . [the] plot to
target Hillary . . . was not pure prosecutorial advocacy,” and that, because
Rain began to conspire to target Hillary before probable cause had been
established, absolutely immunity is unavailable. (Dkt. No. 110 at 8-9.) The
court agrees with Rain.
“Prosecutorial immunity from § 1983 liability is broadly defined,
covering virtually all acts, regardless of motivation, associated with the
prosecutor’s function as an advocate.” Giraldo v. Kessler, 694 F.3d 161,
165 (2d Cir. 2012) (internal quotation marks and citation omitted). “[A]
prosecutor’s functions preliminary to the initiation of proceedings include
whether to present a case to a grand jury, whether to file an information,
whether and when to prosecute, whether to dismiss an indictment against
particular defendants, which witnesses to call, and what other evidence to
present.” Id. (internal quotation marks and citation omitted). However,
absolute immunity only protects conduct that is “intimately associated with
the judicial process,” Imbler v. Pachtman, 424 U.S. 409, 430 (1976), and
does not extend to the prosecutor’s role as an investigator, see Hill v. City
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of New York, 45 F.3d 653, 661 (2d Cir. 1995).
Rain’s alleged conduct clearly falls under the category of conduct
protected by prosecutorial immunity. See Baez v. Hennessy, 853 F.2d 73,
77 (2d Cir. 1988) (“It is well established in New York that the district
attorney, and the district attorney alone, should decide when and in what
manner to prosecute a suspected offender.” (emphasis added) (citations
omitted)). For instance, Hillary alleges that Rain “threatened one
of . . . Hillary’s alibi witnesses with obstruction and the other with a grand
jury subpoena,” (Compl. ¶ 88); Rain “charged . . . Hillary with criminal
contempt based upon [his] visit to his local bank,” (id. ¶ 110); and Rain and
Onondaga County District Attorney Fitzpatrick “were aware that there was
no statistical support for a match between the fingernail scrapings from the
left hand of the victim Garrett Phillips . . . and . . . Hillary,” (id. ¶ 121
(internal quotation marks omitted)).
Rain’s decisions as to the manner in which she prosecuted Hillary,
including seeking assistance from Fitzpatrick, were “simply
implementations of the prosecutorial decision” to prosecute Hillary for a
state crime. Cf. Eisenberg v. Dist. Attorney of Cty. of King, No. CV-931647, 1996 WL 406542, at *7 (E.D.N.Y. July 16, 1996); see Baez, 853
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F.2d at 77 (“A county has no right to establish a policy concerning how [the
District Attorney] should prosecute violations of State penal laws.”
(citations omitted)). Thus, because Hillary’s claims against Rain are
related to her prosecution of Hillary, he has failed to state a claim against
Rain.1 See Simon v. City of New York, 727 F.3d 167, 171 (2d Cir. 2013)
(holding that prosecutorial functions immune from suit “include deciding
whether to bring charges and presenting a case to a grand jury or a court,
along with the tasks generally considered adjunct to those functions, such
as witness preparation”); Bruno v. City of New York, No. 17 Civ. 7552,
2019 WL 690340, at *11 n.9 (S.D.N.Y. Feb. 19, 2019) (“[T]he alleged
falsification of evidence and the coercion of witnesses . . . have been held
to be prosecutorial activities for which absolute immunity applies” (internal
quotation marks and citations omitted)); Watson v. Grady, No. 09-CV3055, 2010 WL 3835047, at *16 (S.D.N.Y. Sept. 30, 2010) (“[Prosecutor
1

Although not specifically alleged in the complaint, to the extent that
Hillary argues that Rain withheld Brady material for over a year, including
a witness who “identified another man, John Jones, of entering the
apartment with Garrett at the time the boy was killed,” (Dkt. No. 110 at
12), such argument is unavailing, because such conduct is protected by
prosecutorial immunity. See Hill v. City of New York, 45 F.3d 653, 661-62
(2d Cir. 1995) (noting prosecutorial immunity extends to conduct before a
grand jury, initiating a prosecution and determining which offense to
charge, and failure to disclose Brady material).
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defendants] are protected by absolute immunity for their professional
evaluation of the evidence and subsequent decision to indict Plaintiff on
various charges.” (citations omitted)).
To the extent Hillary argues that “Rain’s joinder in . . . [the] plot to
target Hillary . . . was not pure prosecutorial advocacy,” and that the “steps
that Rain took as prosecutor corroborate the conspiracy she entered into
with others,” (Dkt. No. 110 at 9, 12), such argument fails. See Pinaud v.
Cty. of Suffolk, 52 F.3d 1139, 1148 (2d Cir. 1995) (“As this Court and
other[] circuits have repeatedly held, since absolute immunity covers
virtually all acts, regardless of motivation, associated with [the
prosecutor’s] function as an advocate, when the underlying activity at issue
is covered by absolute immunity, the plaintiff derives no benefit from
alleging a conspiracy.” (internal quotation marks and citations omitted));
Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994) (extending absolute
prosecutorial immunity to conspiracies to present false evidence at trial
and before the grand jury).
Accordingly, Rain is entitled to absolute prosecutorial immunity as to
Hillary’s claims, and her motion to dismiss is granted on that basis.
2.

Conspiracy
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In any event, Hillary has failed to allege facts giving rise to a
conspiracy.
To survive a motion to dismiss, a conspiracy claim
under 42 U.S.C. 1983 must allege facts plausibly
suggesting that (1) an agreement existed between
two or more state actors to act in concert to inflict an
unconstitutional injury on plaintiff, and (2) an overt act
that was committed in furtherance of that goal.
Vague and conclusory allegations that defendants
have engaged in a conspiracy must be dismissed.
Vega v. Artus, 610 F. Supp. 2d 185, 202-03 (N.D.N.Y. 2009) (citations
omitted).
As argued by Rain, (Dkt. No. 105, Attach. 1 at 6-7), the complaint
fails to identify the existence of any agreement between unidentified
conspirators; it is vague as to Rain’s purported participation in the alleged
conspiracy; it fails to specifically allege what actions Rain allegedly took in
furtherance of a conspiracy; and it fails to specifically identify the alleged
conspirators, (see generally Compl.). Instead, Hillary makes the following
conclusory assertions: “Rain, along with the [other defendants] all worked
together, with the same goal and the same blind malice, to bring about an
indictment,” and “prosecute [Hillary],” “for the purpose of depriving
[him] . . . of equal protection of the laws,” (Compl. ¶¶ 204-06); local law

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enforcement officers and officials “encouraged” Rain to take former St.
Lawrence County District Attorney Nicole M. Duve’s job, (id. ¶ 61); Rain
ran a “vicious” campaign, and was “actively pursuing an arrest in Garrett
Phillips’ case” prior to taking her position in the District Attorney’s Office,
(id. ¶¶ 65, 67-68); and “[w]hen [Rain] announced an indictment in the case
within six months of winning her election, she gave thanks to ‘the fabulous
job done by’ . . . local law enforcement . . . who had ‘encouraged her to run
for the job,’” (id. ¶ 68).
Such allegations are not enough to support a plausible conspiracy
claim involving Rain. See Ciambriello v. Cty. of Nassau, 292 F.3d 307, 325
(2d Cir. 2002) (“[C]omplaints containing only conclusory, vague, or general
allegations that the defendants have engaged in a conspiracy to deprive
the plaintiff of his constitutional rights are properly dismissed; diffuse and
expansive allegations are insufficient, unless amplified by specific
instances of misconduct.” (citation omitted)); Vega v. Artus, 610 F. Supp.
2d 185, 202-03 (N.D.N.Y. 2009) (“Vague and conclusory allegations that
defendants have engaged in a conspiracy must be dismissed.” (citations
omitted)).
Accordingly, Rain’s motion to dismiss Hillary’s conspiracy claim is
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granted, and the claim is dismissed.
3.

Equal Protection

Rain contends that Hillary’s equal protection claim should be
dismissed, because the claim is directed only at the State of New York, the
Village of Potsdam, the County of St. Lawrence and/or the County of
Onondaga, and, in any event, the complaint fails “to allege any unequal
treatment by [Rain] other than the decision to charge and prosecute
[Hillary]—prosecutorial functions for which she is entitled to absolute
immunity.” (Dkt. No. 105, Attach. 1 at 8-9.) In response, Hillary argues
that, although this claim “certainly refers to the institutional
defendants, . . . when it comes to the reach of the overall claim, [the
complaint] states broadly that the actions or inactions of ‘the [d]efendants’
were at least partially inspired by the ‘illegitimate consideration of [Hillary’s]
race,” and, “[t]he fact that other paragraphs refer to certain specific
defendants, like institutional defendants, only confirms that the more
broadly worded ‘the [d]efendants’ applies to everyone, including Rain.”
(Dkt. No. 110 at 13.)
The court is skeptical that Hillary has asserted an equal protection
claim against Rain. But, even if he has, as explained above, the decision
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to prosecute Hillary is a prosecutorial function for which Rain is afforded
prosecutorial immunity.
Accordingly, Rain’s motion to dismiss Hillary’s equal protection claim
is granted, and the claim is dismissed.
B.

Jones’ Motion
Jones moves to dismiss Hillary’s complaint as to all claims asserted

against him. (Dkt. No. 133, Attach. 3.) In response, Hillary opposes
Jones’ motion only as to the third and sixth causes of action against Jones:
a Section 1983 conspiracy claim, and a Section 1983 violation of the Equal
Protection Clause of the Fourteenth Amendment. (Dkt. No. 143 at 4-9.)
Hillary does not oppose the remainder of Jones’ motion with respect to his
other causes of action, (id. at 9), and, accordingly, the following claims
against Jones are dismissed as conceded by Hillary: false arrest; malicious
prosecution; fabrication of evidence; failure to disclose exculpatory
evidence; retaliatory prosecution in violation of the First Amendment; due
process and stigma-plus defamation; municipal and corporate liability;
supervisor liability; negligent hiring, training, supervision, and retention;
false imprisonment/false arrest; and abuse of process. (Compl.
¶¶ 174-79, 180-94, 209-15, 216-21, 228-33, 234-40, 241-49, 250-55,
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256-65, 266-71, 272-80); see Johnson, 2015 WL 4496363, at *5 & n.6.
1.

State Action under 42 U.S.C. § 1983

There appears to be confusion as to whether Hillary’s claims are
brought against Jones in his capacity as a St. Lawrence County deputy
sheriff, or as a private party. However, a review of the complaint reveals
that the fact that Jones is a St. Lawrence County deputy sheriff is merely
coincidental with his involvement in the case, which is his relationship to
Garrett Phillip’s mother, and his interaction with the Village of Potsdam
Police Department, the agency leading the investigation into Phillips’
death.2 (See, e.g., id. ¶¶ 49, 53-56). Accordingly, Jones is not amenable
to suit pursuant to Section 1983 unless he acted under color of state law to
deprive Hillary of his constitutional rights. See Ciambriello, 292 F.3d
at 323. As explained below, Hillary’s conclusory allegations are insufficient
2

Even if the court found that, as a factual matter, Hillary adequately
alleged that Jones is a state actor, his claims would fail. For instance, if
Hillary properly asserted claims against Jones in his official capacity, such
claims would be dismissed as redundant of the claims brought against St.
Lawrence County. See Ratafia v. Cty. of Columbia, No. 1:13-CV-174,
2013 WL 5423871, at *7 (N.D.N.Y. Sept. 26, 2013). And, if Hillary
properly asserted claims against Jones in his individual capacity—suits
which “seek to impose personal liability upon a government official for
actions he takes under color of state law,” see id. at *8—such claims
would be dismissed because, as explained herein, Hillary does not
adequately allege that Jones acted under color of law.
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to state a claim of state action by Jones.
“In order to state a claim under § 1983, a plaintiff must allege that he
was injured by either a state actor or a private party acting under color of
state law.” Id. at 323 (citation omitted). “Typically, state employment is
sufficient to render a person a state actor.” Sherman v. City of New York,
No. 18-cv-5359, 2019 WL 2164081, at *5 (E.D.N.Y. May 16, 2019) (citation
omitted). “However, a state employee who pursues purely private motives
and whose interaction with the victim is unconnected with his execution of
official duties does not act under color of law.” Id. (internal quotation
marks and citation omitted). In order to prove a Section 1983 conspiracy
claim, a plaintiff must allege: “(1) an agreement between a state actor and
a private party; (2) to act in concert to inflict an unconstitutional injury; and
(3) an overt act done in furtherance of that goal causing damages.” Id. at
324-25 (citation omitted). A plaintiff’s allegations must be “amplified by
specific instances of misconduct.” Id. at 325 (citation omitted). “[M]ere[]
conclusory allegation[s] that a private entity [or individual] acted in concert
with a state actor does not suffice to state a [Section] 1983 claim against
the private entity.” Id. at 324. Rather, a plaintiff must show “a sufficiently
close nexus between the [s]tate and the challenged action of the [private]
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entity [or individual] so that the action of the latter may be fairly treated as
that of the [s]tate itself.” Jackson v. Metro. Edison Co., 419 U.S. 345, 351
(1974).
Here, Hillary’s factual allegations in support of his claims against
Jones fail to adequately plead state action on the part of Jones. For
instance, Hillary alleges that Jones “steered the investigation by setting
before [the Village of Potsdam Police Department] warrantless,
prejudicial[,] and unlawful allegations which all of . . . [d]efendants promptly
pursued,” (Compl. ¶ 73), and that “Jones actively participated in
targeting . . . Hillary,” (id. ¶ 52). Such vague and conclusory allegations do
not suffice. See Ciambriello, 292 F.3d at 325.
Hillary also alleges that Jones “went to the police command where
the incident took place and gave the [s]ergeant a key to Tandy Cyrus’s
apartment to compare w[ith] keys found during [the] search of Hillary’s
residence and office,” (Compl. ¶ 53 (internal quotation marks omitted));
“Jones [was] listed as the source informing the police of a witness who
remembers . . . Hillary getting a key made at his store,” (id. ¶ 54); and,
“Jones called Chief of Police Tischler and as a result of that call, the Chief
sent an officer . . . to Hillary’s apartment to conduct an investigation,” (id.
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¶ 55). This conduct does not constitute state action. See Pacherille v.
Cty. of Otsego, No. 3:13-CV-1282, 2014 WL 11515848, at *5 (N.D.N.Y.
Nov. 20, 2014) (“[C]ase law in this Circuit is well-established that the
provision of information to a police officer—even if that information is false
or results in the officer taking affirmative action—is insufficient to constitute
‘joint action’ with state actors for the purposes of [Section] 1983.” (citations
omitted)); Sherman, 2019 WL 2164081, at *6 (“Moreover, even when the
complainant is himself a public official employed by the state, the
complainant does not act under color of law simply by filing a report
alleging a crime.”).
In any event, Hillary has failed to allege facts giving rise to a
conspiracy. Hillary claims that Jones “steered the investigation by setting
before [the Village of Potsdam Police Department] warrantless, prejudicial
and unlawful allegations which all of the [d]efendants promptly pursued.”
(Compl. ¶ 73.) These allegations do not support a conspiracy claim. See
Ciambriello, 292 F.3d at 324. Notably absent from Hillary’s complaint are
specific facts plausibly indicating an agreement between the Village of
Potsdam Police Department, or any other defendants, and Jones, to
violate Hillary’s constitutional rights. See Jae Soog Lee v. Law Office of
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Kim & Bae, PC, 530 F. App’x 9, 10 (2d Cir. 2013) (finding no conspiracy
claim where plaintiff did not allege an agreement). Hillary has not shown a
“meeting of the minds” or “understanding” between a state actor and Jones
sufficient to support a claim of conspiracy. See McGee v. Dunn, 09 Civ.
6098, 2015 WL 9077386, at *5 (S.D.N.Y. Dec. 16, 2015). Accordingly,
Jones’ motion to dismiss Hillary’s Section 1983 conspiracy claim is
granted, and the claim is dismissed.
Finally, as noted above with regard to Hillary’s equal protection claim
against Rain, see supra Part IV.A, the court is skeptical as to whether
Hillary has alleged an equal protection claim against Jones. Nevertheless,
because Hillary’s allegations fail to support a theory of Section 1983
liability, his equal protection claim is dismissed.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Rain’s motion to dismiss (Dkt. No. 105) is
GRANTED; and it is further
ORDERED that Jones’ motion to dismiss (Dkt. No. 133) is
GRANTED; and it is further
ORDERED that the Clerk shall terminate defendants Rain and Jones
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from this action; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
October 14, 2020
Albany, New York

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