Elleby v. Prior, et al
OPINION & ORDER re: 45 MOTION to Dismiss filed by Carty, M. DeRose, 57 MOTION to Dismiss filed by Michael Prior, C. Morello, Police Sgt. Ortiz. For the foregoing reasons, the District Attorney Defendants' and t he Police Defendants' motions to dismiss are granted and the Complaint is dismissed in its entirety. The Clerk of Court is directed to terminate all pending motions, mark this case as closed, and mail a copy of this Opinion & Order to Plaintiff Taye Elleby. SO ORDERED. (Signed by Judge William H. Pauley, III on 8/11/2016) The Clerks Office Has Mailed Copies. (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-againstTHE CITY OF NEW YORK, et al.,
OPINION & ORDER
WILLIAM H. PAULEY III, District Judge:
Plaintiff pro se Taye Elleby brings this federal civil rights action against the City
of New York, Assistant District Attorneys Mirella DeRose, K. Caruso and Siobhan Cary (the
“District Attorney Defendants”), Detective Mark Woods, Police Sergeant Jorge Ortiz, and Police
Officer Michael Prior of the New York City Police Department (the “Police Defendants”)
(collectively, “Defendants”).1 The District Attorney Defendants and the Police Defendants move
separately to dismiss Elleby’s Third Amended Complaint (“Complaint” or “Compl.”) pursuant to
Fed. R. Civ. 12(b)(6). Their motions are granted and this action is dismissed.
The allegations in the Complaint are presumed to be true for purposes of this
motion. In May 2013, the Federal Bureau of Investigation (the “FBI”) alerted the New York
Police Department that a Connecticut resident was travelling to New York City to locate her
missing 17-year-old daughter. (Compl., at 3.) The FBI explained that the mother, Latisha
Spruill, had reason to believe that her daughter was being held by Elleby and forced to engage in
prostitution. (Compl., at 3.) The Police Defendants met Spruill outside Elleby’s apartment
The docket does not indicate that the City of New York, Assistant District Attorney K. Caruso, or
Detective Mark Woods were served with a copy of the summons and Complaint. However, because the claims
against these parties fail for at least the same reasons articulated herein, they too are dismissed.
building. (Compl., at 4.) Another woman, who had accompanied Spruill to New York City,
identified Elleby on the sidewalk. (Compl., at 4.)
Officer Prior stopped Elleby, searched his pockets, seized his phone and wallet,
and handcuffed him. (Compl., at 4.) After Elleby was handcuffed, Officer Prior questioned him
about the allegations of prostitution and whether he was holding any women against their will in
his apartment. (Compl., at 4.) Elleby denied the allegations. (Compl., at 4.) Elleby claims that
he was left leaning with “his chest against a fence” for two hours. (Compl., at 4–5.)
When the police went to Elleby’s apartment, Spruill’s daughter let them in.
(Compl., at 4.) Two other women and a young child were also in the apartment. (Compl., at
3, 4.) Elleby was arrested for criminal trespass and endangering the welfare of a child. (Compl.,
at 5) Later, the criminal charges were upgraded to sex trafficking and promotion of prostitution.
(Compl., at 9.) Elleby was detained for more than 72 hours before being brought before a judge.
(Compl., at 7.)
During his criminal trial, Elleby moved to suppress evidence seized from him,
arguing that the officers lacked probable cause to arrest him for criminal trespass. (See Pl. Br.
(ECF No. 52), Ex. 1 (Dec. 6, 2013 Trial Transcript (“Trail Tr.”)), at 97.) That motion was
On December 16, 2013, Elleby was convicted of sex trafficking and four counts
of promoting prostitution. Thereafter, Elleby was sentenced to a term of imprisonment. (See
Declaration of David Cooper (ECF No. 58), Ex. C (“Certificate of Disposition No. 42788”),
In January 2015, Elleby filed this federal civil rights action asserting a variety of
claims arising out of his arrest and trial.
To withstand dismissal, a pleading “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)).
Courts must accept a plaintiff’s allegations as true and draw all reasonable inferences in his
favor. Gonzalez v. Hasty, 802 F.3d 212, 219 (2d Cir. 2015). Courts may also “rely on matters of
public record in deciding a motion to dismiss under Rule 12(b)(6), including arrest reports,
criminal complaints, indictments, and criminal disposition data.” Fairley v. Collins, No. 09-cv6894 (PGG), 2011 WL 1002422, at *1 (S.D.N.Y. Mar. 15, 2011) (citation and internal quotations
omitted). Where a plaintiff is proceeding pro se, courts construe “the complaint to raise the
strongest claims that it suggests.” Williams v. Correction Officer Priatno, No. 14-4777, --- F.3d
----, 2016 WL 3729383, at *3 (2d Cir. July 12, 2016) (citation omitted). But “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678.
Section 1983 provides a cause of action against any person who “under color of
any statute, ordinance, regulation, custom or usage, of any State . . . subjects, or causes to be
subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws.” 42 U.S.C. § 1983; Albright v. Oliver, 510
U.S. 266, 271 (1994) (“Section 1983 . . . provides a method for vindicating federal rights
elsewhere conferred.” (internal quotation marks omitted)). “A [Section] 1983 claim has two
essential elements: (1) the defendant acted under color of state law; and (2) as a result of the
defendant’s actions, the plaintiff suffered a denial of [his] federal statutory rights, or [his]
constitutional rights or privileges.” Annis v. Cty. of Westchester, 136 F.3d 239, 245 (2d Cir.
1998). Additionally, when a prisoner brings a federal civil rights claim, a court must
consider whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has
already been invalidated. But if the district court determines that the plaintiff’s
action, even if successful, will not demonstrate the invalidity of any outstanding
criminal judgment against the plaintiff, the action should be allowed to proceed, in
the absence of some other bar to the suit.
Heck v. Humphrey, 512 U.S. 477, 486–87 (1994); see also Tankleff v. Cty. of Suffolk, No. 09cv-1207 (JS), 2010 WL 5341929, at *6 (E.D.N.Y. Dec. 21, 2010) (“When a claim for damages
under [Section] 1983 calls into question the validity of an underlying conviction, a district court
must dismiss the claim, unless the conviction has been invalidated.”).
“The first step in [analyzing a Section 1983] claim is to identify the specific
constitutional right allegedly infringed.” Albright, 510 U.S. at 271 (internal quotation marks and
citations omitted). Here, the Complaint alleges a laundry list of claims that can be characterized
generally as claims for a denial of a fair trial, malicious prosecution, false arrest, unlawful search
and seizure, intentional infliction of emotional distress, conspiracy to obstruct justice,
unreasonable detention, Confrontation Clause violations, and witness coercion.
Denial of Fair Trial
Elleby contends that Defendants deprived him of his constitutional right to a “fair
and impartial trial.” (Compl., at 14–15.) However, “[c]laims alleging the denial of the right to a
fair trial . . . imply the [in]validity of any underlying criminal convictions and are precluded by
Heck.” Bowers v. Kelly, No. 13-cv-6265 (LGS), 2015 WL 2061582, at *4 (S.D.N.Y. May 4,
2015). Accordingly, Elleby’s “denial of a fair trial” claims are dismissed.2
A claim “for malicious prosecution accrues when a criminal proceeding
terminates in the plaintiff’s favor.” Bakowski v. Kurimai, 387 F. App’x 10, 11 (2d Cir. 2003);
Droz v. McCadden, 580 F.3d 106, 109 (2d Cir. 2009) (per curiam) (“To state a claim for
malicious prosecution, a plaintiff must show . . . that the [criminal] proceeding was terminated in
the plaintiff’s favor. . . .”) (quoting Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003)).
Because Elleby was convicted at trial—and that conviction has not been set aside—no claim for
malicious prosecution can be advanced.
Elleby argues that when he was first arrested for Criminal Trespass and
Endangering the Welfare of a Child, he was outside of the building, and there were no children
nearby. He also alleges that because he had keys to the apartment and mailbox, as well as cable
bills in his name, he had the “right to be in the building,” and the arrest was unlawful. (See
Compl., at 6.)
However, probable cause is a complete defense to a false arrest claim. Bernard v.
U.S., 25 F.3d 98, 102 (2d Cir. 1994). And “[w]here a court has already determined the issue of
probable cause to make an arrest that is the subject of a claim of false arrest, a party may, in
appropriate circumstances, be estopped from relitigating that issue.” Kent v. Katz, 312 F.3d 568,
573–74 (2d Cir. 2002); see also Mitchell v. Hartnett, 262 F.Supp.2d 153, 155 (S.D.N.Y May 5,
“Disposition of the case on Heck grounds . . . warrants only dismissal without prejudice, because the suit
may be reinstituted should plaintiff’s conviction be ‘expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of
habeas corpus.’” Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999) (quoting Heck, 512 U.S. at 487).
2003) (finding state court determination of probable cause conclusive thereby barring a Section
During Elleby’s trial, the judge found that Officer Prior had probable cause to
arrest Elleby for criminal trespass. (See Trial Tr. at 131:12–25 (“I find that there was probable
cause for the arrest of the defendant, originally, at the scene for criminal trespass based upon
Officer Prior’s testimony.”)) Elleby offers nothing suggesting that he was prevented from fully
and fairly contesting the lawfulness of his arrest in state court. Accordingly, Elleby’s false arrest
claim is barred by the doctrine of collateral estoppel.4
Unlawful Search and Seizure
The Complaint alleges an illegal search and seizure, but the precise theory for any
Fourth Amendment claim is unclear. (See Compl., at 14–15.) To the extent Elleby “intends to
refer to the seizure of his person, this claim would duplicate the false arrest claim.” Peterec v.
Hilliard, No. 12-cv-3944 (CS), 2013 WL 5178328, at *5 (S.D.N.Y. Sept. 16, 2013).
Likewise, to the extent the claims relate to a search of Elleby’s person incident to
his arrest, the Fourth Amendment contains an “exception . . . [and] permits the police to search a
lawfully arrested person and areas within his immediate control.” Smith v. Ohio, 494 U.S. 541,
543 (1990). As previously noted, Elleby challenged the legality of his arrest in state court and is
therefore collaterally estopped from raising that Fourth Amendment claim here. See Sullivan,
Federal courts “apply the rules of collateral estoppel of the state in which the prior judgment was
rendered, which in this case is New York. Under New York law, [the] doctrine applies ‘if the issue in the second
action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff
had a full and fair opportunity to litigate the issue in the earlier action.’” Sullivan v. Gagnier, 225 F.3d 161, 166 (2d
Cir. 2000) (quoting Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343 (N.Y. 1999).
Elleby’s claim is also deficient with regard to the District Attorney Defendants because the Complaint
contains no factual allegations that they played any role in his arrest.
225 F. 3d at 166 (precluding a party from relitigating an issue clearly raised in a prior action and
decided against that party).
Finally, to the extent Elleby intends to challenge the arrest and search of women
in his apartment, (see Compl., at 14 (“Officers Prior and Ortiz [made] a false arrest and illegal
search and seizure . . . so authorities could hold and force these women to make false statements
on [Elleby].”)), such a claim is barred by the doctrine of prudential standing. Elleby is precluded
from “raising another person’s legal rights.” Selevan v. New York Thruway Auth., 584 F.3d 82,
91 (2d Cir. 2009) (quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004)).
Intentional Infliction of Emotional Distress
Elleby makes an elliptical claim for intentional infliction of emotional distress,
alleging that Defendants “did all of the following with intentions to deliberately cause emotional
distress on the plaintiff and the women.” (Compl., at 14.) Elleby asserts no additional facts to
support his intentional infliction of emotion distress claim, but seemingly relies on the
allegations concerning his false arrest and Fourth Amendment claims. However, “a lawful arrest
is a bar to a claim for intentional infliction of emotional distress.” Sepulveda v. City of New
York, No. 01-cv-3054 (DC), 2003 WL 21673626, at *6 (S.D.N.Y. July 17, 2003).
Further, “[i]n New York, recovery of an intentional infliction of emotional
distress claim is allowed only as a last resort, when traditional tort remedies are unavailable.”
Sepulveda, 2003 WL 21673626, at *6 (dismissing intentional infliction of emotional distress
claim because the conduct underlying the claim is encompassed within false arrest claim)
(internal quotations omitted); Thomas v. Cty. of Putnam, 262 F. Supp. 2d 241, 251 (S.D.N.Y.
2003) (“[S]ince the conduct complained of is encompassed in plaintiff’s claims for malicious
prosecution and false arrest and imprisonment, plaintiff’s claim for intentional infliction of
emotional distress must be dismissed.”). Because the allegations undergirding this claim are the
same as those supporting his false arrest and Fourth Amendment claims, his claim for intentional
infliction of emotional distress must be dismissed.
Elleby’s civil rights conspiracy claims fail for the same reasons as his underlying
Section 1983 claims. See Droz, 580 F.3d at 109 (“Because neither of the underlying [S]ection
1983 causes of action can be established, the claim for conspiracy also fails.”); Amaker v.
Weiner, 179 F.3d 48, 52–53 (2d Cir. 1999) (applying Heck to conspiracy claims).
Elleby also alleges a conspiracy to obstruct justice.5 (Compl., at 13.) Construed
liberally, Elleby appears to make a claim that the Police Defendants fabricated evidence, namely,
Elleby’s arrest report. (See Compl., at 11; Pl. Br., at 6.) “When a police officer creates false
information likely to influence a jury’s decision and forwards that information to prosecutors, he
violates the accused’s constitutional right to a fair trial.” Marom v. City of New York, No. 15cv-2017 (PKC), 2016 WL 916424, at *9 (S.D.N.Y. Mar. 7, 2016) (quoting Ricciuti v. N.Y.C.
Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997)). However, when there is a conviction after
trial, such a claim does not accrue until the conviction is vacated. See Bailey v. City of New
York, 79 F. Supp. 3d 424, 455 (E.D.N.Y. 2015) (“Had [plaintiff] raised his fair trial claim—
premised on the fabrication of evidence, which resulted in his arrest and subsequent conviction—
prior to the date his conviction was invalidated, his complaint would have been dismissed
because it would have necessarily implied the unlawfulness of his conviction.”); Bowers, 2015
WL 2061582, at *4 (“Claims alleging the denial of the right to a fair trial . . . likewise imply the
Elleby attempts to advance this claim under 18 U.S.C. § 1505. (See Pl. Br., at 6 (citing the non-existent
“C.P.L. section 1505”).) However, that statute does not contain a private right of action. See Langella v. United
States, No. 01-cv-11583 (AKH), 2002 WL 1218524, at *4 (S.D.N.Y. June 5, 2002).
validity of any underlying criminal convictions and are precluded by Heck.”). Accordingly,
because Elleby’s conviction has not been invalidated, his claim is premature and must be
dismissed. See Amaker v. Weiner, 179 F.3d 48, 52–53 (2d Cir. 1999).
“[A] state prosecuting attorney who acted within the scope of his duties in
initiating and pursuing a criminal prosecution is immune from a civil suit for damages under
[Section] 1983.” Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005). Prosecutorial
immunity from Section 1983 liability extends to “virtually all acts, regardless of motivation,
associated with [the prosecutor’s] function as an advocate.” Dory v. Ryan, 25 F.3d 81, 83 (2d
Cir. 1994) (internal quotation marks omitted); Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir.
1981) (“[A] prosecutor is insulated from liability where his actions directly concern the pre-trial
or trial phases of a case.”). For instance,
the swearing of warrants to insure a witness’s attendance at trial, . . . the falsification
of evidence and the coercion of witnesses, . . . or the failure to drop charges until
immediately before trial, . . . have been held to be prosecutorial activities for which
absolute immunity applies. Similarly, because a prosecutor is acting as an advocate
in a judicial proceeding, the solicitation and subornation of perjured testimony, the
withholding of evidence, or the introduction of illegally-seized evidence at trial
does not create liability in damages.
Taylor, 640 F.2d at 452; see also Bissinger v. City of New York, No. 06-cv-2325 (WHP), 2007
WL 2826756, at *4 (S.D.N.Y. Sept. 24, 2007) (dismissing all claims against District Attorney—
including claim for unreasonable detention—because District Attorney took no “nonprosecutorial action with respect to the matters alleged in the Amended Complaints”).
Prosecutorial immunity also extends to conspiracy claims where the underlying
activity at issue is itself insulated by prosecutorial immunity. See Pinaud v. Cty. of Suffolk, 52
F.3d 1139, 1148 (2d Cir. 1995) (“[S]ince 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 citations and quotations omitted)); Shmueli v. City of New York, 424 F.3d
231, 238 (2d Cir. 2005) (applying prosecutorial immunity to conspiracy claims). And where
“the nature of [official’s] function is . . . clear from the face of the complaint, the absolute
immunity defense may be resolved as a matter of law on a motion to dismiss the complaint
pursuant to Rule 12(b)(6).” Shmueli, 424 F.3d at 236.
Many of Elleby’s claims against the District Attorney Defendants concern their
actions as prosecutors. He alleges that they violated his Sixth Amendment rights under the
Confrontation Clause by introducing testimony from Mondesire at trial, despite never calling her
as a witness or subjecting her to cross-examination. (Compl., at 14–15.) He further alleges that
the District Attorney Defendants coerced witnesses to make false statements by, among other
things, making “threatening and harassing” phone calls to witnesses during Elleby’s trial and
sending police officers to Connecticut to threaten witnesses.6 (Compl., at 7, 14–15.) Elleby
alleges that Assistant District Attorney DeRose had him “held . . . for over 72 hours” before he
was presented for arraignment. (Compl., at 13.) Elleby contends he was deprived of his
constitutional right to a “fair and impartial trial.” (Compl., at 14–15.) And Elleby claims that
the District Attorney Defendants “[p]resented evidence that was illegally seized in false arrest at
trial.” (Compl., at 15.) Because all of Elleby’s allegations against the District Attorney
To the extent that the claims of witness coercion can be construed to apply to the Police Defendants, they
must be dismissed under Heck. Allegations of witness coercion “implicate the protections established in Brady v.
Maryland, 373 U.S. 83 (1963).” McCord v. City of New York, No. 13-cv-2008 (AJN), 2014 WL 2567108, at *2
(S.D.N.Y. June 6, 2014). The Second Circuit “has emphatically and properly confirmed that Brady-based [Section]
1983 claims necessarily imply the invalidity of the challenged conviction in the trial (or plea) in which the Brady
violation occurred.” Poventud v. City of New York, 750 F.3d 121, 132 (2d Cir. 2014) (emphasis in original); see
also McCord, 2014 WL 2567108, at *2 (“Because a Brady violation requires a new trial, Plaintiff’s claim
necessarily implies that his conviction was invalid.”). Because Elleby’s conviction has not been invalidated, his
claim of witness coercion is barred by Heck and must be dismissed.
Defendants relate to actions they took in their official capacities as prosecutors, the District
Attorney Defendants are entitled to absolute prosecutorial immunity.
For the foregoing reasons, the District Attorney Defendants’ and the Police
Defendants’ motions to dismiss are granted and the Complaint is dismissed in its entirety.
The Clerk of Court is directed to terminate all pending motions, mark this case as
closed, and mail a copy of this Opinion & Order to Plaintiff Taye Elleby.
Dated: August 11, 2016
New York, New York
WILLIAM H. PAULEY III
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