Bermudez v. The City of New York et al
Filing
50
MEMORANDUM AND ORDER re: 31 FIRST MOTION to Dismiss notice. filed by James Rodriguez. For the reasons stated above, Rodriguez's motion to dismiss [Dkt. No. 31] is GRANTED. (Signed by Judge Loretta A. Preska on 2/13/2013) (djc)
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11 Civ. 750 (LAP)
Plaintiff,
MEMORANDUM
v.
THE CITY OF NEW YORK, JAMES
RODRIGUEZ, individually and
as Assistant District
Attorney of New York County,
ET AL.,
Defendants.
-----x
LORETTA A. PRESKA{ Chief United States District Judge:
Fernando Bermudez ("Plaintiff") brings this action
pursuant to 42 U.S.C.
§
1983 ("section 1983") against Defendants
the City of New York, former Assistant
strict Attorney in New
York County James Rodriguez ("Rodriguez"), and various members
of the New York City Police Department ("NYPD").
alleges Defendants conspired to violate
Plaintiff
s constitutional
rights in connection with his arrest and prosecution for a
murder perpetrated on the morning of August 4, 1991.
Plaintiff
also asserts a state law claim for negligent infliction of
emotional distress resulting from
s imprisonment and seeks
compensatory and punitive damages.
Rodriguez now moves to
dismiss these causes of action 1 pursuant to Federal Rule of Civil
In his Amended Complaint, Plaintiff asserts fourteen causes of
(continued)
1
1
Procedure 12(b)(6). 2
For the reasons states below, Rodriguez’s
motion to dismiss [Dkt. No. 31] is GRANTED.
I.
BACKGROUND
The Court takes as true the following factual
allegations in the Amended Complaint and draws all reasonable
inferences in favor of Plaintiff.
See Goldstein v. Pataki, 516
F.3d 50, 56 (2d Cir. 2008).
On August 6, 1991, two days after the murder of
Raymond Blount (“Blount”), NYPD detectives arrested Plaintiff at
(continued)
action against Rodriguez, the City of New York, and members of
the NYPD. (See Am. Compl. ¶¶ 218-352.) In his Memorandum of
Law in Opposition to Defendant’s Motion to Dismiss (“Pl. Opp.”),
Plaintiff concedes that Count 1 (false imprisonment), Count 2
(false arrest), Count 8 (false arrest), Count 9 (false
imprisonment), and Count 12 (intentional infliction of emotional
distress) should all be dismissed as against Rodriguez. (See
Pl. Opp. at 3-4.) These causes of action are therefore
dismissed with respect to Rodriguez.
Plaintiff further concedes that Count 3, Count 4, Count 5,
Count 7, and Count 10 do not pertain to Rodriguez. (Id. at 4.)
Furthermore, Count 13 and Count 14 are relevant only to the
causes of action against the City of New York and members of the
NYPD. (See Am. Compl. ¶¶ 346-352.) Thus, only Count 6
(conspiracy) and Count 11 (negligent infliction of emotional
distress) remain against Rodriguez. Because these are the only
two Counts that are subject to the instant motion to dismiss,
the Court herein addresses no other claim raised in the Amended
Complaint.
2
Rodriguez states in his moving papers that he also seeks
dismissal under Rule 12(b)(1) but fails to explain why the Court
lacks subject matter jurisdiction over Plaintiff’s claims, nor
is the Court aware of any such reason. Therefore, the Court
analyzes the instant motion only according to the mandates of
Rule 12(b)(6).
2
approximately 3:00 a.m., (see Am. Compl. ¶¶ 23, 29, 33, 37, 77),
after several eyewitnesses to the murder selected Plaintiff’s
photo from a mug shot drawer and later in photo arrays presented
by the detectives at the CATCH Unit and the Sixth Precinct, (id.
¶¶ 51-52, 57, 64).
Rodriguez arrived at the Sixth Precinct at
approximately 10:00 a.m., seven hours after Plaintiff’s arrest.
(Id. ¶ 83.)
Later that morning, at approximately 11:00 a.m.,
witnesses Kent, Thompson, Iyesi, and Velazquez each identified
Plaintiff as the shooter in what Plaintiff alleges was a
“suggestive” lineup.
(Id. ¶¶ 78-80.)
Plaintiff claims
Rodriguez “conferred with the other named defendants and
participated in the tainted line-up.”
(Id. ¶ 83.)
Specifically, Plaintiff alleges the lineup was tainted by the
prior, defective photo identification procedures instituted by
the detectives before Rodriguez’s arrival.
(Id. ¶ 80.)
Rodriguez interviewed the witnesses who viewed the
lineup and issued Thompson and Velazquez grand jury subpoenas
requiring their appearances on August 8, 1991.
(Id. ¶ 83.)
While Rodriguez was interviewing witnesses at the Sixth
Precinct, Plaintiff alleges he spoke with Detective Massanova
and provided an account of his whereabouts at the time of
Blount’s murder.
(Id. ¶ 84.)
Plaintiff denied participation in
the crime and provided an alibi.
(Id.)
Plaintiff’s friends
subsequently arrived at the precinct and spoke with detectives
3
about their whereabouts on the night of the murder, confirming
Plaintiff’s alibi.
(Id. ¶ 85.)
Rodriguez learned of the
statements Plaintiff’s friends provided to Detective Massanova.
(Id.)
At approximately 5:00 p.m. that day, Plaintiff spoke
with Rodriguez.
(Id. ¶ 86.)
In that videotaped interview,
Plaintiff admitted to being in and around the area of the Marc
Ballroom—the site of the murder—during the early morning hours
of August 4, 1991, but denied any knowledge of Blount’s murder
or of Ephrain Lopez (“Lopez”), the man who identified Plaintiff
as the shooter.
(Id. ¶¶ 86-89.)
Rodriguez also interviewed Lopez.
(Id. ¶ 91.)
Prior
to conducting that interview, Rodriguez knew that Plaintiff was
being prosecuted for federal cocaine offenses.
(Id.)
During
the interview, Lopez admitted to being at the Marc Ballroom, to
being punched by Blount, to pointing out Blount to the shooter,
and to believing “they” were only going to “beat Blount up.”
(Id. ¶¶ 91, 98.)
Lopez stated that he knew the shooter and,
while they had “no relationship,” Lopez knew the shooter as
“Lou” or “Wool Lou” and proceeded to describe “Lou” generally.
(Id. ¶¶ 92-94.)
At a later point in Lopez’s interview, Detective
Massanova brought in the photo array containing Plaintiff’s
unrelated marijuana arrest photo.
4
(Id. ¶ 95.)
It was the same
photo that Lopez had previously identified the night before.
(Id. ¶¶ 95-96.)
Rodriguez showed the photo array to Lopez, who
confirmed the individual depicted in Plaintiff’s photo was the
individual he previously identified as the shooter, “Lou.”
¶ 95.)
(Id.
Lopez also told Rodriguez that Plaintiff did not have
any of “that hair on his face” at the time of the shooting.
(Id.)
Lopez never admitted to knowing the shooter was going to
shoot Blount.
Following the interview, Lopez was allowed to
leave the precinct. (Id. ¶ 100.)
Rodriguez then conducted videotaped interviews of
Plaintiff’s friends, who provided statements regarding their
whereabouts on the evening of Blount’s murder.
(Id. ¶ 103.)
Those statements largely corroborated Plaintiff’s own account,
save for minor details.
(Id. ¶ 104.)
On August 8, 1991, two of
the identifying witnesses—neither of whom was Lopez—testified
before a New York County grand jury.
(Id. ¶ 108.)
The grand
jury handed down an indictment charging Plaintiff with Blount’s
murder.
(Id.)
Prior to trial, Plaintiff moved to suppress the
identification evidence.
On December 20, 1991, New York County
Supreme Court Justice John A.K. Bradley conducted a Wade
hearing.
(Id. ¶ 121.)
During that hearing, detectives
allegedly testified falsely about the identification procedures
they used.
(Id. ¶¶ 122-126.)
Plaintiff claims that despite his
5
counsel’s attempts at the Wade hearing to uncover exculpatory
evidence, Rodriguez successfully concealed certain Brady
material.
(See id. ¶¶ 127-31.)
Plaintiff’s motion to suppress
the alleged tainted identifications was denied.
(Id. ¶ 132.)
Prior to trial, the New York County District
Attorney’s Office entered into a cooperation agreement with
Lopez.
(Id. ¶¶ 133-35.)
Plaintiff alleges that the terms of
the cooperation agreement provided that Lopez “would not be
charged with the murder of Blount, if he testified against
Fernando Bermudez.”
(Id. ¶ 135.)
Plaintiff alleges that
Rodriguez “directed” Lopez how he was to testify falsely about
“Wool Lou.”
(Id. ¶¶ 136-37.)
On February 6, 1992, following a
trial in which each of the identifying witnesses testified,
including Lopez, a jury found Plaintiff guilty of murder.
(See
id. ¶¶ 146-47, 150, 158.)
Prior to sentencing, Plaintiff moved to set aside the
verdict pursuant to New York Criminal Procedure Law § 330.30, on
the ground of newly discovered evidence.
(See id. ¶¶ 159-63.)
Plaintiff submitted various third-party affidavits averring that
“Wool Lou,” the nickname attributed to Plaintiff by Lopez, was
actually a man named Luis Munoz.
(Id. ¶ 163.)
Additionally,
Plaintiff’s defense investigator showed a photo array with
Plaintiff’s and Munoz’s photos to two of Blount’s friends,
neither of whom identified Plaintiff as the shooter.
6
(Id.
¶ 164.)
One of Blount’s friends, however, identified Munoz as
“the one most similar to the shooter.”
(Id.)
Subsequently,
Rodriguez ran a criminal record check of Munoz and learned he
had a criminal history similar to that of Lopez, from which
Rodriguez “surmised” that Lopez “might have misidentified
(Id. ¶ 166.)
[Plaintiff] by name only to mislead the police.”
Relying on Rodriguez’s arguments, Justice Bradley denied the
motion to set aside the verdict.
(Id. ¶ 170.)
On September 18,
1992, Plaintiff was sentenced to a term of twenty-three years to
life in prison.
(Id. ¶ 172.)
Plaintiff alleges that on September 17, 1992, his
investigator showed his photo array to one of the identifying
witnesses who testified at trial, who identified Munoz as “the
one most resembling the shooter.”
(Id. ¶ 171.)
On September
22, 1992, Plaintiff’s investigator obtained an affidavit from
Lopez claiming “Wool Lou” was Luis Munoz and that he was
“coerced” into identifying Plaintiff out of fear of prosecution.
(Id. ¶ 173.)
The identifying witnesses also later recanted,
signing affidavits withdrawing their identifications and
alleging they had been pressured to identify Plaintiff in court
“with more confidence than they had really felt.”
(Id. ¶ 175.)
Plaintiff filed several motions for post-judgment relief over
the next few years, all of which were denied by Justice Bradley.
(See id. ¶¶ 174-82.)
Plaintiff alleges that Rodriguez made
7
“numerous gross misrepresentations of fact” while refuting
Plaintiff’s allegations of suggestive procedures used at the
CATCH Unit.
(Id. ¶ 177.)
On direct appeal, the Appellate Division for the First
Department affirmed Plaintiff’s conviction and rejected the
trial witnesses’ recantations as “inherently unreliable” and
surrounded by “highly suspicious circumstances.”
People v.
Bermudez, 667 N.Y.S.2d 901, 901 (App. Div. 1st Dep’t 1997).
Plaintiff then filed a petition for habeas corpus in the
Southern District of New York in June 2000.
(Am. Compl. ¶ 187.)
In November 2002, Magistrate Judge Fox held a hearing on the
claims of suggestive identification procedures and perjury, (id.
¶ 188), and ultimately recommended that Plaintiff’s petition be
denied, which this Court adopted in March 2006, (id. ¶¶ 192-93).
Plaintiff filed a new motion for post-judgment relief
in state court on October 6, 2008.
(Id. ¶ 203.)
Following a
full hearing, New York Supreme Court Justice John Cataldo ruled
that Plaintiff was actually innocent and vacated the conviction.
(Id. ¶¶ 214, 220.)
Plaintiff was released from state prison on
November 20, 2009, after having spent over eighteen years in
prison.
(Id. ¶ 221.)
8
II.
DISCUSSION
Pursuant to Federal Rule of Civil Procedure 12(b)(6),
Rodriguez argues Plaintiff’s Amended Complaint must be dismissed
as against Rodriguez based on the doctrine of absolute immunity
and for failure to state a claim upon which relief may be
granted.
The Court agrees and discusses each ground for
dismissal below.
A.
Legal Standard
In assessing a motion to dismiss under Rule 12(b)(6),
the Court must accept all non-conclusory factual allegations as
true and draw all reasonable inferences in favor of the nonmoving party.
2008).
Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir.
To survive such a motion, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’”
Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
A pleading must offer more
than mere “labels and conclusions” or a “formulistic recitation
of the elements of a cause of action.”
555.
Twombly, 550 U.S. at
“Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the
line between possibility and plausibility of entitlement to
relief.’”
Iqbal, 556 U.S. at 678 (internal quotation marks
omitted) (quoting Twombly, 550 U.S. at 557).
9
A claim passes as
plausible when “the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678
(emphasis added).
B.
Rodriguez Is Entitled to Absolute Prosecutorial
Immunity
Prosecutors are entitled to absolute immunity to
section 1983 claims when performing activities “intimately
associated with the judicial phase of the criminal process.”
Imbler v. Pachtman, 424 U.S. 409, 430 (1976); Warney v. Monroe
County, 587 F.3d 113, 120-21 (2d Cir. 2009).
Providing such
immunity facilitates “the vigorous and fearless performance of
the prosecutor’s duty that is essential to the proper
functioning of the criminal justice system.”
Imbler, 424 U.S.
at 427-28.
In determining whether the application of
prosecutorial immunity is appropriate, courts look to the
specific functions performed, not the identity of the actor.
See Warney, 587 F.3d at 121.
That is, actions are not protected
by absolute immunity simply because a prosecutor performs them;
“rather, the question is whether the actions ‘are part of a
prosecutor’s traditional functions.’”
Parkinson v. Cozzolino,
238 F.3d 145, 150 (2d Cir. 2001) (quoting Doe v. Phillips, 81
F.3d 1204, 1209 (2d Cir. 1996)).
10
When an action occurs in the
course of a prosecutor’s role as an advocate, it is shielded by
absolute immunity.
Imbler, 424 U.S. at 430-31; Warney, 587 F.3d
at 121.
The Supreme Court has held that prosecutors’ function
as advocates during “the professional evaluation of the evidence
assembled by the police” and when preparing for their
“presentation at trial or before a grand jury after a decision
to seek an indictment has been made.”
Buckley v. Fitzsimmons,
509 U.S. 259, 273 (1993); accord Hill v. City of New York, 45
F.3d 653, 661 (2d Cir. 1995).
The prosecutor’s role as an
advocate, and therefore absolute immunity, may extend beyond the
initial judicial proceeding.
See Warney, 587 F.3d at 122-23;
Spurlock v. Thompson, 330 F.3d 791, 799 (6th Cir. 2003)
(“Absolute immunity applies to the adversarial acts of
prosecutors during post-conviction proceedings, including direct
appeals[] [and] habeas corpus proceedings, . . . where the
prosecutor . . . continues his role as an advocate.”).
However, “[a] prosecutor’s administrative duties and
those investigatory functions that do not relate to an
advocate’s preparation for the initiation of a prosecution or
for judicial proceedings are not entitled to absolute immunity.”
Buckley, 509 U.S. at 273; Parkinson, 238 F.3d at 150.
A
prosecutor functions in an investigatory capacity up and until
11
he has gathered sufficient evidence to demonstrate probable
cause to effect an arrest.
See Hill, 45 F.3d at 662-63.
“[T]he official seeking absolute immunity bears the
burden of showing that such immunity is justified for the
function in question.”
Burns v. Reed, 500 U.S. 478, 486 (1991).
Further, the prosecutor’s motivation for performing acts within
the office’s traditional functions is irrelevant.
25 F.3d 81, 83 (2d Cir. 1994).
Dory v. Ryan,
“This would even include . . .
allegedly conspiring to present false evidence at a criminal
trial.”
Id.
Though the rule might sound harsh in this regard,
the Supreme Court has determined that providing absolute
immunity from civil redress arises from the “concern that
harassment by unfounded litigation would cause a deflection of
the prosecutor’s energies from his public duties” and may
prevent him from “exercising the independence of judgment
required by his public trust.”
Imbler, 424 U.S. at 423.
“Thus,
while absolute prosecutorial immunity may leave an injured party
without a remedy, society has found more benefit in insulating
the exercise of prosecutorial discretion.”
Flagler v. Trainor,
663 F.3d 543, 547 (2d Cir. 2011).
“‘[D]istrict courts are encouraged to determine the
availability of an absolute immunity defense at the earliest
appropriate stage . . . because . . . absolute immunity defeats
a suit at the outset, so long as the official’s actions were
12
within the scope of the immunity.’”
Watson v. Grady, No. 09
Civ. 3055, 2010 WL 3835047, at *15 (S.D.N.Y. Sept. 30, 2010)
(first alteration in original) (quoting Deronette v. City of New
York, No. 05 Civ. 5275, 2007 WL 951925, at *4 (E.D.N.Y. Mar. 27,
2007)).
However, “when it may not be gleaned from the complaint
whether the conduct objected to was performed by the prosecutor
in an advocacy or an investigatory role, the availability of
absolute immunity . . . cannot be decided as a matter of law on
a motion to dismiss.”
Hill, 45 F.3d at 663.
Here, to determine whether Rodriguez is entitled to
absolute immunity, the Court must decide the capacity in which
he was functioning when he committed the acts alleged by
Plaintiff.
The conduct on which Plaintiff predicates his causes
of action against Rodriguez may be summarized as (1) engaging in
unconstitutional identification procedures; (2) conspiring to
present falsified evidence to, and to withhold exculpatory
evidence from, a grand jury and a petit jury; (3) deliberately
suppressing Brady material; (4) fabricating evidence; and
(5) coercing witness testimony.
The Court addresses each of
these allegations in turn.
As to the first act—engaging in unconstitutional
identification procedures—Plaintiff has not sufficiently pleaded
facts that suggest Rodriguez was acting in an investigatory
role.
Plaintiff often alleges that Rodriguez was “functioning
13
as an investigator,” (e.g., Am. Compl. ¶ 82), or was “acting in
his investigatory capacity,” (e.g., id. ¶ 90).
However,
“labeling various actions ‘investigative’ . . . in the complaint
is of no moment.”
Crews v. County of Nassau, No. 06 Civ. 2610,
2007 WL 4591325, at *15 n.15 (E.D.N.Y. Dec. 27, 2007).
Critically relevant here is the fact that when Rodriguez arrived
at the Sixth Precinct on the morning of August 6, 1991,
Plaintiff had already been arrested by the police. 3
Compl. ¶¶ 77-83.)
(See Am.
Because Plaintiff had already been arrested
by the time Rodriguez arrived at the police station, Hill
suggests Rodriguez was not functioning in an investigatory
capacity at that point in time.
See 45 F.3d at 662.
Independently, Plaintiff’s allegation that upon
arriving at the police station Rodriguez “conferred with the
other named defendants and participated in the tainted line-up,”
(Am. Compl. ¶ 83), is conclusory and does not give rise to a
plausible inference that Rodriguez was acting outside his role
as an advocate for the State.
Plaintiff fails to plead with
3
The Court finds the contradictory nature of some of Plaintiff’s
allegations concerning the nature of the functions Rodriguez
performed confusing, if not irreconcilable. For example,
Plaintiff alleges in one passage of the Amended Complaint that
“[p]re-arrest, [Rodriguez] was functioning as an investigator
rather than [as] an advocate of the Court.” (Am. Compl. ¶ 82.)
Yet in the very next paragraph, Plaintiff alleges that Rodriguez
arrived at the Sixth Precinct seven hours after Plaintiff’s
arrest, (id. ¶ 83), and Plaintiff offers nothing in the way of
plausible involvement by Rodriguez prior to that time.
14
particularity how Rodriguez participated in the claimed tainted
lineup. 4
As such, Plaintiff’s bald assertion “‘stops short of
the line between possibility and plausibility of entitlement to
relief.’”
Iqbal, 556 U.S. at 678 (internal quotation marks
omitted) (quoting Twombly, 550 U.S. at 557).
Furthermore, even if Rodriguez was present for the
lineup, his presence there can plainly be characterized as being
for the purpose of evaluating evidence, an act which is
protected by absolute immunity.
See Buckley, 509 U.S. at 273.
Plaintiff’s allegations do not suggest Rodriguez’s presence
during the lineup was for any purpose other than evaluating and
organizing evidence collected by the police for presentation to
a grand jury and at trial.
“Interviewing [] witness[es] prior
to bringing them before the grand jury to obtain an indictment
is critical to a prosecutor’s role as an advocate for the
State.”
Tabaei v. N.Y. City Health & Hosps. Corp., No. 11 Civ.
2013, 2011 WL 6778500, at *4 (S.D.N.Y. Dec. 21, 2011); see also
Coakley v. 42nd Precinct Case 458, No. 08 Civ. 6206, 2009 WL
3095529, at *9 (S.D.N.Y. Sept. 28, 2009) (categorizing a
prosecutor’s attending a lineup as among those actions
“intimately associated with the judicial phase of the criminal
4
Furthermore, in the original Complaint, Plaintiff claimed that
Rodriguez was unaware of any suggestive or tainted
identification procedures used by the NYPD. (See Compl. ¶¶ 123,
144, 256-58, 271.)
15
process” (quoting Imbler, 424 U.S. at 430-31)).
The allegations
as to Rodriguez’s participation in Plaintiff’s lineup,
therefore, do not defeat Rodriguez’s claim to absolute immunity. 5
The conduct of Rodriguez summarized above as the
second and third acts, i.e., presenting falsified and incomplete
evidence to a grand jury and suppressing Brady material, is
clearly protected by the doctrine of absolute immunity.
First,
several Courts of Appeals, including the Second Circuit, have
consistently held that prosecutors are immune from civil
liability under section 1983 for their conduct before a grand
jury.
See Hill, 45 F.3d at 661 (citing Burns, 500 U.S. at 490
n.6 (collecting cases)).
Further, prosecutors are protected
against allegations of their “knowing use of perjured testimony”
at trial.
See Imbler, 424 U.S. at 431 n.34; Dory, 25 F.3d at 83
(noting that a prosecutor is immune from section 1983 liability
for allegedly conspiring to present false evidence at trial).
And the availability of absolute immunity is not precluded by
the inclusion of a claim of conspiracy because the immunity
“attaches to the function the prosecutor is performing, not the
5
Just as Plaintiff fails to plead with particularity the extent
of Rodriguez’s participation in the alleged tainted lineup, it
is unclear why Plaintiff believes the lineup was tainted in the
first place. Based on what can be gleaned from the Amended
Complaint, however, Plaintiff appears to claim the lineup was
tainted because of police conduct that occurred before Rodriguez
arrived at the Sixth Precinct. See infra note 6 and
accompanying text.
16
way in which it is performed.”
Dory, 25 F.3d at 83).
Hill, 45 F.3d at 662 (citing
As to the alleged failure to turn over
Brady material, such failure occurred after Rodriguez was
functioning in his role as a prosecutor.
Accordingly, this
conduct is similarly immune from civil liability as a
discretionary—even if woefully inappropriate—advocacy function.
Hill, 45 F.3d at 662.
Finally, because Plaintiff does not adequately plead
his claims that Rodriguez fabricated evidence and coerced
witness testimony he cannot withstand Rodriguez’s absolute
immunity defense.
Plaintiff does not allege with sufficient
particularity that Rodriguez’s interactions with identifying
witnesses, notably Lopez, occurred outside the scope of his
prosecutorial role as an advocate.
The “suggestive and
coercive” photo identification procedures to which Plaintiff
makes frequent reference, (e.g., Am. Compl. ¶¶ 139, 188),
occurred prior to Rodriguez’s involvement in the case.
Indeed,
Plaintiff concedes Rodriguez was not present at the CATCH Unit
and did not arrive at the Sixth Precinct until after these
alleged improprieties occurred.
(Compare, e.g., id. ¶ 76 (“[A]t
around 11:00 p.m., [on August 5, 1991,] Detective Massanova
showed Lopez the photo array with the Bermudez mug shot.
Detectives Massanova and Mulalley improperly suggested to Lopez
that Bermudez was the shooter.”), with id. ¶ 83 (“Rodriguez
17
arrived at the Sixth Precinct at around 10:00 a.m, August 6,
1991 . . . .”).) 6
Plaintiff further alleges that Rodriguez coerced Lopez
(See id. ¶¶ 98,
to testify falsely by threat of prosecution.
173.)
Specifically, Plaintiff asserts that Rodriguez instructed
Lopez to obscure the name “Wool Lou” by pronouncing it “Woolu,”
(id. ¶¶ 92-93), and that the threat of prosecution was used to
force Lopez to give testimony consistent with the narrative
created by Rodriguez and the NYPD that Plaintiff was the
shooter, (id. ¶¶ 135-37, 151, 173).
While such behavior, if
true, is nothing short of reprehensible and would subject
Rodriguez to criminal liability as well as professional
discipline—just as would certain of the other claims of
impropriety against Rodriguez—the Court must nevertheless apply
the functional approach outlined in Imbler and grant absolute
immunity where the conduct alleged was performed in Rodriguez’s
prosecutorial role as an advocate.
See Kent v. Cardone, 404 F.
App’x 540, 544 (2d Cir. 2011) (summary order).
6
To the extent Plaintiff’s allegation as to Rodriguez’s
participation in the tainted lineup forms part of the basis for
Plaintiff’s claim that Rodriguez fabricated evidence, the Court
already rejected this allegation supra. Moreover, Plaintiff’s
Amended Complaint suggests it was the prior suggestive photo
identification procedures, from which Rodriguez was admittedly
absent, that “tainted” the lineup. (See Am. Compl. ¶ 80.)
Because Rodriguez, as pleaded in the Amended Complaint, did not
participate in the alleged improper photo identification
procedures, these actions do not support any claim against
Rodriguez.
18
At the time of the alleged misconduct, Rodriguez was
interviewing Lopez to evaluate his testimony for presentation as
a witness to a grand jury and at trial.
As stated previously
the immunity attaches to the function, not the manner in which
it was performed.
See Hill, 45 F.3d at 662; Dory, 25 F.3d at 83
(holding that the fact that a conspiracy to present false
evidence was not something properly within the role of a
prosecutor was immaterial in determining whether immunity
applied).
Even if Rodriguez coerced false testimony he did so
after police officers secured the witnesses and in his role as
an advocate for the state.
Accordingly, Rodriguez is entitled
to absolute immunity with respect to the claims that he
fabricated evidence and coerced testimony. 7
In sum, Plaintiff has not alleged sufficient facts to
defeat Rodriguez’s absolute immunity defense.
7
The Court thus
As noted above, to the extent any of the alleged improper acts
extended to proceedings beyond the initial trial phase, they are
likewise protected. “[B]y the nature of their office,
prosecutors will necessarily remain involved in criminal cases,”
even after a conviction becomes final. Warney, 587 F.3d at 121.
Indeed, the initiation of judicial proceedings serves as the
starting point for absolute immunity but “‘does not serve to
delineate the endpoint of immunity.’” Id. at 122 (quoting
Parkinson, 238 F.3d at 151). For example, absolute immunity
extends to a prosecutor’s actions taken while working on a
direct appeal, Parkinson, 238 F.3d at 151-52, and when defending
a conviction from collateral attack, Warney, 587 F.3d at 122-23,
insofar as the challenged actions are undertaken in the
prosecutor’s role as an advocate, id. at 123. Here, because
Rodriguez’s alleged improper conduct falls directly within the
prosecutor’s advocacy function, his challenged actions are
protected by absolute immunity regardless of when they occurred.
19
dismisses Plaintiff’s Amended Complaint as to Rodriguez on this
basis.
C.
Plaintiff Fails to State a Claim for Conspiracy
Against Rodriguez
Even assuming, arguendo, that Plaintiff has
sufficiently pleaded facts that suggest Rodriguez is not
entitled to immunity because he was not acting within his
prosecutorial role or because his role cannot be determined at
this stage of the litigation, the conspiracy count against
Rodriguez still must be dismissed on the merits for failure to
state a claim upon which relief may be granted. 8
A plaintiff must allege the following to survive a
motion to dismiss a claim for conspiracy to violate section
1983:
“‘(1) an agreement between two or more state actors or
between a state actor and a private entity; (2) to act in
concert to inflict an unconstitutional injury; and (3) an overt
act done in furtherance of that goal causing damages.’”
Bullard
v. City of New York, 240 F. Supp. 2d 292, 301 (S.D.N.Y. 2003)
(quoting Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.
1999)).
“‘[C]onclusory’ allegations of conspiracy are
8
Rodriguez points out, and Plaintiff admits, that Rodriguez is
not named in the heading of Count 6. However, it is clear from
the remainder of the Amended Complaint that Plaintiff intended
to allege a claim of conspiracy against Rodriguez. (See, e.g.,
Am. Compl. ¶¶ 100, 105-06.) Because Rodriguez reasonably had
notice of the conspiracy claim and in light of the Court’s
preference to resolve claims on their merits, the Court will not
deem this claim procedurally defective.
20
insufficient to survive a motion to dismiss.”
Sudler v. City of
New York, No. 08 Civ. 11389, 2010 WL 68095, at *12 (S.D.N.Y.
Jan. 8, 2010) (citing Iqbal, 556 U.S. at 678); see also Walker
v. Jastremski, 430 F.3d 560, 564 n.5 (2d Cir. 2005).
Put
another way, a plaintiff must allege facts that plausibly
suggest a “‘meeting of the minds,’ such as that defendants
‘entered into an agreement, express or tacit, to achieve the
unlawful end.’”
Romer v. Morgenthau, 119 F. Supp. 2d 346, 363
(S.D.N.Y. 2000) (quoting Warren v. Fischl, 33 F. Supp. 2d 171,
177 (E.D.N.Y. 1999); see also Webb v. Goord, 340 F.3d 105, 111
(2d Cir. 2003) (upholding dismissal of conspiracy claim where
the plaintiffs did not allege, “except in the most conclusory
fashion, that any such meeting of the minds occurred among any
or all of the defendants”).
Here, the allegations in the Amended Complaint as to
Rodriguez’s participation in a conspiracy are merely conclusory.
Plaintiff asserts that all Defendants, including Rodriguez,
“conferred and agreed not to pursue” certain evidence, (Am.
Compl. ¶ 100), “agreed not to disclose” certain information,
(id. ¶ 101), “actively conspired to suppress the actual events,”
(id. ¶ 105), and “conspired . . . to permit [Lopez] to testify
falsely,” (id. ¶ 106).
Merely to assert that a conspiracy
occurred, however, does not suffice.
Rather, Plaintiff must
allege specific facts that, if taken as true, make it plausible
21
that Rodriguez had some agreement or understanding with the
other Defendants to commit the alleged constitutional
violations.
Plaintiff, however, fails to do so.
While
Plaintiff alleges certain wrongdoings committed by both
Rodriguez and members of the NYPD, (see, e.g., id. ¶ 83
(participation in the tainted lineup); id. ¶¶ 86-87 (interview
of Bermudez); id. ¶¶ 91-98 (interview of Lopez)), nothing in the
Amended Complaint plausibly suggests that these acts were done
in furtherance of an agreed upon conspiracy.
Plaintiff’s arguments in his opposition are
unavailing.
Plaintiff merely reiterates that Defendants “agreed
not to pursue the investigation any further” and “agreed to
suppress the actual events of the night in question.”
at 9.)
(Pl. Opp.
Again, these are nothing more than mere conclusions
couched as factual allegations.
Plaintiff fails to show, for
example, how Rodriguez and the NYPD officers conspired together
when Lopez was not called as a witness before the grand jury.
Instead, he merely concludes that “Defendants intentionally
elected not to call Lopez.”
(Am. Compl. ¶ 108.)
But nothing
Plaintiff alleges suggests Rodriguez’s decision not to call
Lopez as a witness was based on a conspiracy between Rodriguez
and members of the NYPD rather than due to Rodriguez’s
individual discretion as a prosecutor.
22
Further, despite Plaintiff’s suggestion, the pleading
standard set forth in Twombly and Iqbal is not a numbers game;
the sheer volume of facts alleged, two hundred and twenty-five,
does not turn a legal conclusion into a plausible inference.
See Twombly, 550 U.S. at 556-57 (rejecting a conspiracy in
restraint of trade claim, explaining that “a conclusory
allegation of agreement at some unidentified point does not
supply facts adequate to show illegality”).
Plaintiff also
fails to allege at what point the meeting of the minds occurred.
And, as noted previously, some of the conspiratorial acts
alleged, such as “unconstitutional identification procedures,”
(see Pl. Opp. at 8), transpired prior to Rodriguez’s involvement
in the case.
Accordingly, because Plaintiff has not alleged
sufficient factual matter to suggest plausibly that Rodriguez,
acting in concert with NYPD officers and detectives, agreed to
conspire against Plaintiff in violation of his constitutional
rights, Plaintiff’s conspiracy claim against Rodriguez must be
dismissed on the merits for failure to state a claim upon which
relief may be granted.
D.
The Court Declines to Exercise Supplemental
Jurisdiction over Plaintiff’s Remaining Claim Against
Rodriguez
Plaintiff has also brought a claim of negligent
infliction of emotional distress under New York state law.
23
Because the claim over which this Court has original
jurisdiction has been dismissed, see
Court declines to exercise suppl
jurisdiction over
iff's remaining state law c
U.S.C.
§
1367(c) (3)
("The dist
Parts II.B-C, the
against Rodriguez.
ct courts may decline to
exercise supplemental jurisdiction over a claim .
di
See 28
if
ct court has dismissed all claims over which it has
jurisdiction .
. 1/) •
III. CONCLUSION
For the reasons stated above, Rodriguez's motion to
dismiss [Dkt. No. 31] is GRANTED.
SO ORDERED.
Dated:
New York, New York
February ~, 2013
~tf.yJ~
UNITED STATES DISTRICT JUDGE
24
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