Smith v. Schweiloch et al

Filing 11

MEMORANDUM OPINION AND ORDER: The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. Smith's motion to for reconsideration is denied. Smith&# 039;s motion for leave to amend his complaint is denied as moot. Smith's motion to certify the Court's previous Order for interlocutory appeal is denied. The Clerk is directed to close Docket No.9. (Signed by Judge John G. Koeltl on 6/15/2012) (pl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
─────────────────────────────────
JAMES SMITH,
Plaintiff,

12 Civ. 3253 (JGK)
MEMORANDUM OPINION AND
ORDER

-againstHARRISON SCHWEILOCH, et al.,
Defendants.
──────────────────────────────────

JOHN G. KOELTL, United States District Judge:
The plaintiff pro se James Smith (“Smith”) has moved for
reconsideration of the Court’s May 22, 2012 Memorandum Opinion
and Order of Service, in which the Court dismissed sua sponte
the claims against Assistant District Attorney Harrison
Schweiloch (“Schweiloch”) from this § 1983 action on the grounds
of absolute prosecutorial immunity.

See Smith v. Schweiloch, 12

Civ. 3253, 2012 WL 1887124, at *1 (S.D.N.Y. May 22, 2012).
Smith moves in the alternative for leave to amend his complaint,
or for leave to file an interlocutory appeal in the Court of
Appeals for the Second Circuit.

I.
The standard to be applied to a motion for reconsideration
under Local Rule 6.3 is well-established.

It is the same as the

standard that was applied under former Local Civil Rule 3(j).
See United States v. Letscher, 83 F. Supp. 2d 367, 382 (S.D.N.Y.
1999) (collecting cases).

The moving party is required to
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demonstrate that “the Court [ ] overlooked controlling decisions
or factual matters that were put before it on the underlying
motion, and which, had they been considered, might have
reasonably altered the result before the court.”

Vincent v.

Money Store, No. 03 Civ. 2876, 2011 WL 5977812, at *1 (S.D.N.Y.
Nov. 29, 2011) (citation omitted).
The decision to grant or deny a motion for reconsideration
“rests within the sound discretion of the district court.”

Id.

The rule “is narrowly construed and strictly applied so as to
avoid repetitive arguments on issues that have been fully
considered by the court.”

Walsh v. McGee, 918 F. Supp. 107, 110

(S.D.N.Y. 1996) (internal quotation marks and citation omitted);
see also Eaton Vance Mut. Funds Fee Litig., 403 F. Supp. 2d 310,
313 (S.D.N.Y. 2005), aff’d, Bellikoff v. Eaton Vance Corp., 481
F.3d 110 (2d Cir. 2007); Vincent, 2011 WL 5977812, at *1.

II.
A prosecutor acting within the scope of his duties is
entitled to absolute immunity with respect to prosecutorial
activities that are “intimately associated with the judicial
phase of the criminal process.”

Cornejo v. Bell, 592 F.3d 121,

127 (2d Cir. 2010) (citing Imbler v. Pachtman, 424 U.S. 409, 430
(1976)).

This immunity extends to actions relating to his
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function as an advocate.

See Peay v. Ajello, 470 F.3d 65, 68

(2d Cir. 2006) (a prosecutor is entitled to absolute immunity
despite allegations of misconduct); Fields v. Soloff, 920 F.2d
1114, 1119 (2d Cir. 1990) (“[U]nless a prosecutor proceeds in
the clear absence of all jurisdiction, absolute immunity exists
for those prosecutorial activities intimately associated with
the judicial phase of the criminal process.

This protection

extends to the decision to prosecute as well as the decision not
to prosecute.” (citations and internal quotation marks
omitted)).
In its previous Memorandum Opinion, the Court found that
“[t]he plaintiff does not assert any conduct by ADA Schweiloch
that did not arise out of his advocacy role or was outside his
jurisdiction.

Rather, the plaintiff explicitly asserts that the

prosecutor only became involved in this case after the
plaintiff’s allegedly false arrest, and the plaintiff’s factual
allegations with respect to the prosecutor all relate to alleged
misconduct relating to the prosecutor’s actions before the grand
jury, at a suppression hearing, and at trial.”

See Schweiloch,

2012 WL 1887124, at *1.
Smith now argues that the first violation of his
constitutional rights for which he seeks to hold Schweiloch
liable occurred at “approx. 8:30 p.m. on 8/26/09, when [Smith]
sustained serious physical injury at [the] hands of said Police
Defendants in question, purportedly while Resisting Arrest.”
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Notice of Motion, Smith v. Schweiloch, No. 12 Civ. 3253, ECF No.
9 (S.D.N.Y. May 31, 2012) (“Pl.’s Mot.”), at 6.

Smith argues

that the advocacy phase began at 10:30 p.m. the next day, when
he represents that a felony complaint was filed.

Id.

Smith

argues that Schweiloch was in constant contact with the Police
during the period between his arrest on the 26th, and the filing
of the complaint on the 27th, and that during that period
Schweiloch directed the plaintiff’s unlawful detention and
interrogation on the subject of eight burglaries other than the
burglary for which Smith had been arrested.

Id. at 5.

“[P]rosecutorial immunity extends to actions involving
potential, as well as actual litigation,” and there is no
“bright line commencement-of-proceedings test.”
Smith, 836 F.2d 96, 100 (2d Cir. 1987).

Barbera v.

Rather, “a prosecutor’s

function depends chiefly on whether there is pending or in
preparation a court proceeding in which the prosecutor acts as
an advocate.”
Cir. 2009).

Warney v. Monroe Cnty., 587 F.3d 113, 123 (2d
The Court of Appeals for the Second Circuit has

explained that, with respect to “the pre-litigation function
that a prosecutor performs,” a prosecutor’s “supervision of and
interaction with law enforcement agencies in acquiring evidence
which might be used in a prosecution” are not covered by
absolute immunity, because they are “actions that are of a
police nature.”

Barbera, 836 F.2d 96, 100.

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Smith alleges that, during the 22 hour period between his
arrest and the filing of the felony complaint, Schweiloch was
acting in an investigative capacity because he was “actively and
personally ordering and directing” Smith’s allegedly unlawful
detention and interrogation by the police, which included
questioning about burglaries other than the one for which he was
arrested.

See Pl.’s Mot. at 4-5. 1

Conclusory allegations that a prosecutor acted in an
investigative fashion by directing allegedly unconstitutional
police conduct are insufficient to state a claim.

See, e.g.,

Hays v. Clark County, Nevada, No. 07 Civ. 1395, 2009 WL 2177237,
at *2 (D. Nev. July 22, 2009) (“That the plaintiffs may not rely
upon mere labels and conclusions is critical in this matter
because, as the plaintiffs have alleged and must concede, Moreo
prosecuted Robert.

The plaintiffs cannot rely solely upon

allegations that are consistent with a claim arising from nonprosecutorial conduct.”) (denying motion for reconsideration);
cf. Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009) (conclusory

1

Smith also asserts that Schweiloch was involved in
investigating Smith for at least one month before Smith’s
arrest. Pl.’s Mot. at 3. Such conduct might not be covered by
absolute immunity. See, e.g., Tabaei v. New York City Health
and Hospitals Corp., No. 11 Civ. 2013, 2011 WL 6778500, at *2-*3
(S.D.N.Y. Dec. 21, 2011). However, Smith does not appear to
assert any § 1983 claims that stem from this pre-arrest
investigation, as opposed to his arrest and the period
thereafter.
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allegations of supervisory liability were “not entitled to the
assumption of truth”).

Smith’s allegation that Schweiloch

“actively and personally order[ed] and direct[ed]” police
conduct that might otherwise be considered investigative,
standing alone is not a plausible allegation that Schweiloch was
acting in an investigative capacity.

Smith has failed to plead

any factual allegations stating a plausible claim that the
prosecutor was involved in the investigation of any offense
rather than the preparation of a case for prosecution.
The motion for reconsideration is therefore denied.

III.
Smith also seeks leave to amend his complaint.

Smith has

the opportunity to amend his complaint once as of right “within
21 days after serving it.”

See Fed. R. Civ. P. 15(a)(1)(A).

The complaint has not yet been served.

Smith therefore does not

need to seek the Court’s leave to file an amended complaint.
The motion for leave to amend is therefore denied as moot.
However, Smith is advised that, if he cannot state specific
facts that state a plausible claim that Schweiloch deprived him
of a constitutional right while he was acting in an
investigative capacity, his claims against Schweiloch may be
dismissed again.

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To the extent that specific evidence is uncovered at a
later phase in this case that indicates that Schweiloch took
specific actions, in an investigative rather than advocacy role,
that deprived Smith of a constitutional right, Smith could seek
leave to amend at that time.

See Fed. R. Civ. P. 15(a)(2) (“The

court should freely give leave when justice so requires.”).
Smith also seeks leave to file an interlocutory appeal.
Pursuant to 28 U.S.C. § 1292(b), a district court should certify
an order for interlocutory review if the order (1) “involves a
controlling question of law,” (2) there exists “substantial
ground for difference of opinion,” and (3) an immediate appeal
may advance the termination of the case.

Only “exceptional

circumstances justify a departure from the basic policy of
postponing appellate review until after the entry of a final
judgment.”
(1978).

Coopers & Lybrand v. Livesay, 437 U.S. 463, 475

“The decision whether to grant an interlocutory appeal

from a district court order lies within the district court's
discretion.”

King County, Wash. v. IKB Deutsche Industriebank

AG, Nos. 09 Civ. 8387 & 08 Civ. 7508, 2012 WL 2148894, at *2
(S.D.N.Y. June 7, 2012).
The Court will not exercise its discretion to grant an
interlocutory appeal in this case.

The question of whether

Schweiloch’s dismissal is proper can be reviewed once there is a
final judgment in this case.

Further, Smith has the opportunity
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to amend his complaint to allege factual allegations, if there
be any, to support a claim that is not barred by absolute
immunity.

An interlocutory appeal would not advance this

litigation and there is no basis to believe that the Court’s
decision raises a substantial ground for a difference of
opinion.
Nor is interlocutory appeal required because the legal
issue deals with absolute immunity.

When a district court

denies a motion to dismiss on the basis of absolute immunity,
that denial may be subject to interlocutory appeal.
Smith v. Reagan, 841 F.2d 28, 30 (2d Cir. 1988).

See, e.g.,

There is no

case that holds that interlocutory review is available where a
Court dismisses a claim on the basis of absolute prosecutorial
immunity and there is no final judgment.

The rationale for

interlocutory review of a decision denying an absolute immunity
defense is that “the essence of the immunity is the possessor’s
right not to be haled into court—a right that cannot be
vindicated after trial.”
citation omitted).

Id. (internal quotation marks and

By contrast, Smith’s right to relief with

respect to his claims against Schweiloch may be vindicated by
appellate review after the entry of final judgment.

Smith’s

request that the Court certify its previous Memorandum Opinion
and Order of Service for interlocutory review is therefore
denied.

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CONCLUSION

The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, the arguments
are either moot or without merit.
Smith's motion to for reconsideration is denied.

Smith's

motion for leave to amend his complaint is denied as moot.
Smith's motion to certify the Court's previous Order for
interlocutory appeal is denied.
The Clerk is directed to close Docket No.9.
SO ORDERED.

Dated: June 15, 2012
New York, New York

JOHN G. KOELTL

ited States District Judge

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