Corley v. Vance et al
OPINION AND ORDER re: 211 FIRST MOTION to Dismiss Refiled per Court Notice filed by Municipal Credit Union, 179 MOTION to Dismiss filed by Mark Woods, Giancarlo Cavallo, Greg Smith, Michael Daly, Brian Conroy, Jes sica Sterling, Shari C. Hyman, 169 FIRST MOTION to Dismiss Notice of Motion filed by T-Mobile USA Inc., 166 FIRST MOTION to Dismiss Dismiss 15 CV 1800. filed by Greg Weiss, Elizabeth Pederson, John Temples, David Stuar t, Cyrus R. Vance, Jr., Dany Personnel, 216 FIRST MOTION to Dismiss filed by Time Warner Cable Inc., 185 MOTION to Dismiss . filed by Facebook Inc., 174 MOTION to Dismiss the complaint filed by Capital One N.A., 267 MOTION for Sanctions. MOTION for Judgment on the Pleadings. filed by Royce Corley, 183 MOTION to Dismiss filed by CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Walter Panchyn, Michael T Haggerty, 171 MOT ION to Dismiss Complaint as to Chase Only Pursuant to Fed.R.Civ.P. 12(b)(6) filed by JPMorgan Chase Bank N.A., 189 MOTION for Joinder DEFENDANT GOOGLE LLC'S LIMITED JOINDER IN MOTION TO DISMISS AND MEMORANDUM OF LAW OF DEFEN DANT FACEBOOK, INC. filed by Google Inc,. With regard to Case No. 15 Civ. 9621, Defendants motions to dismiss are GRANTED, and Plaintiff's 9621 Complaint is dismissed in its entirety. The Clerk of Court is directed to terminate all pen ding motions, adjourn all remaining dates, and close that case. With regard to Case No. 15 Civ. 1800, the motions to dismiss submitted by the following parties are GRANTED in their entirety: T-Mobile, Facebook, Google, TWC, MCU, Capital One, Chase , Con Edison, and the City of New York. The Clerk of Court is directed to terminate these parties. The DA Defendant's motion is DENIED as to Plaintiff's claims for unlawful search and seizure, and GRANTED in all other respects. The NYPD Defendant's motion is DENIED as to Plaintiff's claims for malicious prosecution, and unlawful search and seizure, and GRANTED in all other respects. The Clerk of Court is directed to terminate the motions at Docket Entries 166, 169, 17 1, 174, 179, 183, 185, 189, 211, 216, and 267 in Case No. 15 Civ. 1800. The remaining parties are directed to submit a proposed Case Management Plan for the Court's consideration on or before May 1, 2019. The parties should be mindful that di scovery in this case will only be permitted as it pertains to Plaintiffs' three remaining claims; discovery may not be taken as to any claim dismissed in this Opinion. SO ORDERED. (City of New York, Facebook Inc., Google Inc,, JPMorgan Chase Bank N.A., Municipal Credit Union, T-Mobile USA Inc., Time Warner Cable Inc., CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and Capital One N.A. terminated.) (Signed by Judge Katherine Polk Failla on 3/27/2019) Copies Mailed By Chambers. (anc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CYRUS R. VANCE, JR., DAVID STUART, JOHN
TEMPLES, ADA GREG WEISS, ELIZABETH PEDERSON,
DANY PERSONNEL, BRIAN CONROY, MICHAEL DALY,
MARK WOODS, DETECTIVE JESSICA STERLING,
GIANCARLO CAVALLO, GREG SMITH, NYPD
15 Civ. 1800 (KPF)
PERSONNEL, OSE PERSONNEL, MICHAEL T.
HAGGERTY, WALTER PANCHYN, AREA OFFICER JOHN
DOE #3, BACKPAGE.COM, LLC, SPRINT NEXTEL CORP.,
T-MOBILE USA INC., FACEBOOK INC., GOOGLE INC.,
TIME WARNER CABLE INC., RESEARCH IN MOTION
LTD., MUNICIPAL CREDIT UNION, CAPITAL ONE N.A.,
JPMORGAN CHASE BANK N.A., CONSOLIDATED
EDISON COMPANY OF NEW YORK, INC., CITY OF NEW
YORK, NEW YORK COUNTY DISTRICT ATTORNEY, and
SUPERVISOR C.O. JOHN DOE #1-2,
HONORABLE BONNIE G. WITTNER, MICHAEL J. BARRY, 15 Civ. 9621 (KPF)
PORTS & FILES, INC., GLENN F. HARDY, ESQ., GLENN
F. HARDY, P.C., CYRUS R. VANCE, JR., JOHN TEMPLE,
DAVID STUART, GREG WEISS, JOHN DOE, and THE
CITY OF NEW YORK,
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
In 2014, Plaintiff Royce Corley was convicted in this District on federal
charges involving trafficking of minors and possession of child pornography.
Now, proceeding pro se, Plaintiff brings two civil rights actions under 42 U.S.C.
§ 1983, alleging claims arising out his investigation, arrest, and prosecution on
earlier state charges that were ultimately subsumed by his federal case. In
addition to his federal claims, Plaintiff asserts state-law claims over which he
asks this Court to exercise supplemental jurisdiction.
Defendants Cyrus R. Vance, Jr., David Stuart, John Temples, Greg
Weiss, Elizabeth Pederson (collectively, the “DA Defendants”); Brian Conroy,
Michael Daly, Mark Woods, Jessica Sterling, Giancarlo Cavallo, Greg Smith,
Shari C. Hyman (collectively, the “NYPD Defendants,” and together with the DA
Defendants, the “Government Defendants”); Consolidated Edison Company of
New York, Inc. (“Con Edison”), Michael T. Haggerty and Walter Panchyn
(collectively, the “Con Edison Defendants”); T-Mobile USA Inc. (“T-Mobile”),
Facebook Inc. (“Facebook”), Google Inc. (“Google”), Time Warner Cable Inc.
(“TWC”), Municipal Credit Union (“MCU”), Capital One N.A. (“Capital One”),
JPMorgan Chase Bank N.A. (“Chase”) (collectively, the “Corporate Defendants”);
Michael J. Barry and Ports & Files, Inc. (collectively, the “Barry Defendants”);
Glenn F. Hardy, Esq. and Glenn F. Hardy, P.C. (collectively, the “Hardy
Defendants”); the Honorable Bonnie G. Wittner; and the City of New York
(altogether, the “Moving Defendants”) now move to dismiss under Federal Rule
of Civil Procedure 12(b)(6). Separately, Justice Wittner moves to dismiss under
Rule 12(b)(1); Facebook moves to dismiss under Rule 12(b)(2); and the DA
Defendants move to dismiss under Rule 12(b)(5). For the reasons set forth in
this Opinion, the motions are granted in part and denied in part. 1
This Opinion addresses two separate civil lawsuits brought by Plaintiff. Because the
actions are not merely related, but share a common factual nucleus, the Court
addresses the Moving Defendants’ motions in both cases in a single opinion. Three
defendants in Case No. 15 Civ. 1800 are not addressed in this Opinion. Defendant
Research in Motion, Ltd. was served on February 19, 2019, and its answer or response
is due April 22, 2019. Defendant Sprint filed a renewed motion for summary judgment
on February 28, 2019, which motion will be addressed separately. Defendant
Backpage.com was served on August 16, 2016; a Certificate of Default from the Clerk of
Court was entered on January 15, 2019; and Plaintiff has not yet moved for default
For ease of reference, the Court will distinguish docket entries from the two cases by
citing to them as “1800 Dkt.” or “9621 Dkt.” The facts contained in this Opinion are
drawn principally from Plaintiff’s Complaints in Case No. 15 Civ. 1800 (1800 Dkt. #1
(“1800 Compl.”)), and Case No. 15 Civ. 9621 (9621 Dkt. #2 (“9621 Compl.”)), the wellpleaded facts of each of which are taken as true for the purposes of the instant motions.
Motions to dismiss have been filed by 13 groups of defendants: the DA Defendants, the
NYPD Defendants, the Con Edison Defendants, Justice Wittner, the Barry Defendants,
the Hardy Defendants, T-Mobile, Facebook, Google, TWC, MCU, Capital One, and
Chase. For ease of reference, the memoranda of law in support of the respective
motions to dismiss will be referred to as “DA Br.” (1800 Dkt. #212; 9621 Dkt. #91),
“NYPD Br.” (1800 Dkt. #182), “Con Edison Br.” (1800 Dkt. #184), “Wittner Br.” (9621
Dkt. #97), “Barry Br.” (9621 Dkt. #88), “Hardy Br.” (9621 Dkt. #94), “T-Mobile Br.”
(1800 Dkt. #170), “Facebook Br.” (1800 Dkt. #186), “Google Br.” (1800 Dkt. #189),
“TWC Br.” (1800 Dkt. #217), “MCU Br.” (1800 Dkt. #212), “Capital One Br.” (1800 Dkt.
#175), and “Chase Br.” (1800 Dkt. #172). The Court will distinguish memoranda of law
submitted by the DA Defendants and the NYPD Defendants in the two cases by citing to
them as “1800 [Defendant] Br.” or “9621 [Defendant] Br.” Plaintiff’s memoranda of law
in opposition to the motions to dismiss will be referred to as “1800 Pl. Opp.” (1800 Dkt.
#269), and “9621 Pl. Opp.” (9621 Dkt. #117). The reply briefs that were filed by the 10
of the 13 groups of Defendants will be referred to as “DA Reply” (1800 Dkt. #272; 9621
Dkt. #121), “Con Edison Reply” (1800 Dkt. #276), “Wittner Reply” (9621 Dkt. #126),
“Hardy Reply” (9621 Dkt. #122), “T-Mobile Reply” (1800 Dkt. #271), “Facebook Reply”
(1800 Dkt. #275), “Google Reply” (1800 Dkt. #290), “TWC Reply” (1800 Dkt. #274),
“Capital One Reply” (1800 Dkt. #278), and “Chase Reply” (1800 Dkt. #277). The Court
will distinguish memoranda of law submitted by the DA Defendants and the NYPD
Defendants in the two cases by citing to them as “1800 [Defendant] Reply” or “9621
Plaintiff filed his complaint in the first of his two civil rights cases, Corley
v. Vance, No. 15 Civ. 1800, on January 13, 2015. (1800 Dkt. #1). 2 The 1800
Complaint alleged violations of the Constitution and of several federal statutes,
including the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C.
§§ 2510-2523, the Stored Communications Act (“SCA”), 18 U.S.C. §§ 27012713, the Right to Financial Privacy Act (“RFPA”), 12 U.S.C. §§ 3401-3423, and
the Driver’s Privacy Protection Act (“DPPA”), 18 U.S.C. §§ 2721-25, as well as
various state-law claims. The named defendants in that case include the DA
Defendants, the NYPD Defendants, the Corporate Defendants, the Con Edison
Defendants, and the City of New York. (Id.).
The 1800 Complaint alleges that in 2007, Plaintiff “was informally doing
business under the nom de guerre ‘Ron Iron’ providing advertising and web
development services to escort, therapeutic and adult-oriented businesses.”
(1800 Compl. ¶¶ 5, 22). Subsequently, in 2008, Plaintiff began working as a
technician for Con Edison. (Id. at ¶ 23). In 2009, an individual who had been
convicted of promoting prostitution allegedly “vindictively” forwarded to law
enforcement false information implicating Plaintiff in illegal activity. (Id. at
¶ 25). Plaintiff alleges that, in consequence, law enforcement officers:
(i) induced a minor to work as a confidential informant and prostitute to
Plaintiff later filed a document styled as a “Complaint Supplement” that was docketed
by this Court on May 19, 2015. (1800 Dkt. #13). The Supplement provided information
that had been redacted from the 1800 Complaint.
manufacture evidence against Plaintiff; (ii) tampered with advertisements
appearing on Backpage.com by “altering ‘AdOId’ posted by other individuals, or
created by the defendants”; and (iii) used fabricated evidence to obtain court
orders, subpoenas, and warrants. (Id. at ¶¶ 27-29, 37-41). Accordingly, it is
alleged that despite using a warrant, “defendants had no probable cause” to
obtain access to Plaintiff’s accounts; to search his apartment and office at Con
Edison; or to seize his cell phones, electronic media, and credit cards. (Id. at
Plaintiff asserts that he “has not been provided with any court orders,
subpoenas, warrants or notices in relation to any of these disclosures.” (1800
Compl. ¶ 26). Backpage.com is further alleged to have “aided and abetted” law
enforcement “by granting them unlimited access to password-protected
accounts without the proper legal authority,” while other of the Corporate
Defendants are alleged to have provided law enforcement with Plaintiff’s
records, emails, and instant messages. (Id. at ¶¶ 24, 38, 60-62).
Initially, Plaintiff was charged by the Office of the District Attorney for
New York County (the “DANY”) in New York County Supreme Court. However,
the state charges were dismissed on February 1, 2013. (1800 Compl. ¶ 46).
Instead, Plaintiff was prosecuted federally by the United States Attorney’s
Office for the Southern District of New York (the “USAO”). (9621 Compl. ¶ 49).
He was indicted in this District on January 22, 2013, and a superseding
indictment was returned on October 10, 2013. See United States v. Corley,
No. 13 Cr. 48 (RPP/AJN) (S.D.N.Y.). Plaintiff was ultimately convicted of child
exploitation and child pornography offenses in April 2014; his conviction was
affirmed by the United States Court of Appeals for the Second Circuit on
February 9, 2017, United States v. Corley, 679 F. App’x 1 (2d Cir. 2017)
(summary order); and his petition for certiorari was denied by the United States
Supreme Court on October 2, 2017, Corley v. United States, 138 S. Ct. 205
As noted, the 1800 Complaint focuses on the conduct of law enforcement
authorities before and immediately following Plaintiff’s 2012 arrest. Plaintiff
asserts claims under 42 U.S.C. § 1983 for, inter alia, false arrest, false
imprisonment, malicious prosecution, unlawful search and seizure, malicious
abuse of process, conspiracy to violate due process, fabrication of evidence,
and violations of the rights to a speedy trial and to privacy, as well as state-law
claims of negligence, negligent infliction of emotional distress, and fraud.
(1800 Compl. ¶¶ 72-84, 95-99). Broadly speaking, Plaintiff alleges that private
individuals and corporations (i) conspired with state actors to violate his
constitutional rights and (ii) failed to train their employees properly with
respect to the release of customer information. Plaintiff further asserts that the
private defendants violated federal statutes that limit disclosure of electronic
records and communications. (Id. at ¶¶ 60-63).
On December 8, 2015, Plaintiff filed a second complaint, this one against
New York State Supreme Court Justice Bonnie G. Wittner, the judge who
presided over Plaintiff’s state prosecution; Michael J. Barry, Plaintiff’s
appointed counsel in that case; criminal investigator Glenn F. Hardy and his
company, Ports & Files, Inc., also appointed to assist in Plaintiff’s defense;
several members of the DANY; and the City of New York. (9621 Dkt. #2).
Whereas the 1800 Complaint focused on the investigative work undertaken
preliminary to Plaintiff’s 2012 arrest, the 9621 Complaint focused on the
conduct of those involved in Plaintiff’s state prosecution from its inception until
the case was turned over to federal prosecutors.
In the 9621 Complaint, Plaintiff alleges that Justice Wittner and
representatives of the DANY conspired (i) to establish a “quasi-grand jury” for
the purpose of accessing, illegally, Plaintiff’s communications and records
(9621 Compl. ¶ 17); (ii) to “coerce or entice” an underage female to participate
in an illegal sting operation against Plaintiff that would “manufacture” statecourt jurisdiction over him (id. at ¶¶ 18, 24); (iii) to circumvent case
assignment procedures so that Plaintiff’s criminal case would be assigned to
Justice Wittner (who, it is alleged, would then cover up the putative coconspirators’ prior misconduct, see id. at ¶ 27); and (iv) to solicit the USAO to
prosecute Plaintiff (id. at ¶¶ 39-41, 46-49). Plaintiff further alleges that his
attorney and criminal investigator publicized private information concerning
Plaintiff and his case “for the purpose of financial gain and promoting their
professional practices.” (Id. at ¶ 50; see also id. at ¶¶ 50-52). Indeed,
according to Plaintiff, attorney Barry and investigator Hardy actively promoted
Plaintiff’s case in the media in order to “entic[e] the U.S. Attorney to take the
case.” (Id. at ¶ 41).
The procedural history of each case spans more than four years,
although each was stayed several times. First, on January 13, 2015, Plaintiff
initiated the 1800 action. (1800 Dkt. #1). On June 22, 2015, after reviewing
the 1800 Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), the
Court issued an Order to Amend, addressing, in detail, what it perceived to be
the legal and factual impediments to mounting Plaintiff’s claims. See Corley v.
Vance, No. 15 Civ. 1800 (KPF), 2015 WL 4164377, at *1-9 (S.D.N.Y. June 22,
2015). The Court warned Plaintiff that most of the counts in his Complaint
might be subject to dismissal on the bases identified in the Order and provided
Plaintiff with the opportunity to amend his pleading within 60 days. See id. at
Plaintiff declined to amend the 1800 Complaint, and the Court dismissed
it on December 2, 2015, for failure to comply with the Court’s orders, with
leave to replead within 30 days. (1800 Dkt. #20). In lieu of repleading, Plaintiff
appealed the Court’s Order of Dismissal to the Second Circuit. (1800 Dkt.
#21). On May 6, 2016, the Second Circuit vacated the Order of Dismissal and
remanded the case, ordering this Court to consider the 1800 Complaint on the
merits. (1800 Dkt. #23).
Several months later, the 9621 case, which had initially been assigned to
United States District Judge John G. Koeltl, was transferred to this Court.
Upon motion, both cases were stayed by the Court by orders dated
September 16, 2016, so that Plaintiff could pursue his appeal from his criminal
conviction. (1800 Dkt. #97; 9621 Dkt. #60). At the time these stays were
entered, several of the defendants in the 9621 case — specifically, Defendants
Hardy, Vance, Stuart, Temple, and Weiss — had filed motions to dismiss.
(9621 Dkt. #32, 43).
As previously stated, the Supreme Court denied Plaintiff’s petition for
certiorari in October 2017. See Corley, 138 S. Ct. at 205. By orders dated
November 1, 2017, the Court lifted the stays in the 1800 and 9621 cases and
scheduled a series of conference calls with the parties in order to discuss next
steps. (1800 Dkt. #135; 9621 Dkt. #67). As detailed in several Court orders,
technical and logistical difficulties foiled the Court’s efforts to convene the
parties telephonically. (1800 Dkt. #144, 148; 9621 Dkt. #72, 78). However,
before the February 12, 2018 conference came to its premature end, the Court
learned that Plaintiff wished to renew a previously-filed motion for the Court’s
recusal in both cases. The Court reimposed the stays and ordered Plaintiff to
refile his recusal motion (1800 Dkt. #148; 9621 Dkt. #78), which Plaintiff did
on or about February 26, 2018 (1800 Dkt. #150; 9621 Dkt. #79).
On June 19, 2018, the Court denied the motion for recusal, lifted the
stays, and scheduled motion practice to occur concurrently in both matters.
(1800 Dkt. #152; 9621 Dkt. #83). In September 2018, Plaintiff requested a 90day extension to file his Opposition, from September 21, 2018, until December
20, 2018. (1800 Dkt. #233; 9621 Dkt. #107). The Court granted the request
and ordered Defendants to respond to the Opposition on or before January 7,
2019. (1800 Dkt. #234; 9621 Dkt. #108). By letter dated December 12, 2018,
Plaintiff again requested, and the Court again granted, an extension to file his
Opposition, this time until January 25, 2019. (1800 Dkt. #256-57; 9621 Dkt.
#114-15). Plaintiff’s third request for an extension was denied on January 11,
2019. (1800 Dkt. #262). Accordingly, Plaintiff filed his Opposition in late
January 2019 (1800 Dkt. #267-69; 9621 Dkt. #117-19), and Defendants timely
filed their briefs in reply (1800 Dkt. #271-78; 9621 Dkt. #120-26). 3
Motions Under Federal Rule of Civil Procedure 12(b)(1)
Several subsections of Rule 12(b) of the Federal Rules of Civil Procedure
are invoked by the Moving Defendants, and to contextualize its legal analysis,
the Court presents the standards for each in this section. Federal Rule of Civil
Procedure 12(b)(1) permits a party to move to dismiss a complaint for “lack of
subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). “A case is properly
dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the
district court lacks the statutory or constitutional power to adjudicate it.”
Lyons v. Litton Loan Servicing LP, 158 F. Supp. 3d 211, 218 (S.D.N.Y. 2016)
(quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). In
resolving a Rule 12(b)(1) motion, “the district court must take all
uncontroverted facts in the complaint ... as true, and draw all reasonable
Portions of Plaintiff’s memoranda in opposition are improperly titled as “cross-motions”
on both dockets. The Court addresses Plaintiff’s motions for default judgment (9621
Dkt. #116), judgment on the pleadings (9621 Dkt. #116; 1800 Dkt. #267), and
sanctions (1800 Dkt. #267), infra. For ease of reference, the Court refers to Plaintiff’s
opposition papers holistically as his “Opposition.”
inferences in favor of the party asserting jurisdiction.” Fountain v. Karim, 838
F.3d 129, 134 (2d Cir. 2016) (quoting Tandon v. Captain’s Cove Marina of
Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)). “A plaintiff asserting
subject matter jurisdiction has the burden of proving by a preponderance of
the evidence that it exists.” Id. (quoting Makarova, 201 F.3d at 113).
Motions Under Federal Rule of Civil Procedure 12(b)(2)
When a defendant brings a motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(2), “the plaintiff bears the burden of establishing that
the court has [personal] jurisdiction over the defendant.” DiStefano v. Carozzi
N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001) (citation omitted); accord In re
Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 673 (2d Cir. 2013). “Prior to
discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the
motion by pleading in good faith, legally sufficient allegations of jurisdiction.
At that preliminary stage, the plaintiff’s prima facie showing may be established
solely by allegations.” Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d
81, 84-85 (2d Cir. 2013) (per curiam) (citation omitted). All jurisdictional
allegations “are construed in the light most favorable to the plaintiff and doubts
are resolved in the plaintiff’s favor[.]” A.I. Trade Fin., Inc. v. Petra Bank, 989
F.2d 76, 79-80 (2d Cir. 1993). However, the court “will not draw argumentative
inferences in the plaintiff’s favor” and need not “accept as true a legal
conclusion couched as a factual allegation[.]” In re Terrorist Attacks, 714 F.3d
at 673 (citations omitted); see also Licci ex rel. Licci v. Lebanese Canadian
Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012).
District courts deciding motions to dismiss for lack of personal
jurisdiction typically engage in a two-part analysis. First, the court assesses
whether there is “a statutory basis for exercising personal jurisdiction.” Marvel
Characters, Inc. v. Kirby, 726 F.3d 119, 128 (2d Cir. 2013). In making this
determination, the court “applies the forum state’s personal jurisdiction rules”
unless a federal statute “specifically provide[s] for national service of process.”
PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997) (internal
quotation marks and citations omitted). Second, if there is a statutory basis for
personal jurisdiction, the court must decide whether the exercise of jurisdiction
comports with due process. Sonera Holding B.V. v. Çukurova Holding A.Ş., 750
F.3d 221, 224 (2d Cir. 2014) (per curiam).
It is well established that “[a] district court’s personal jurisdiction is
determined by the law of the state in which the court is located.” Spiegel v.
Schulmann, 604 F.3d 72, 76 (2d Cir. 2010). New York’s long-arm statute
authorizes courts to exercise personal jurisdiction “over any non-domiciliary ...
who in person or through an agent ... transacts any business within the state,”
so long as the cause of action “aris[es] from” that transaction. N.Y. C.P.L.R.
§ 302(a)(1). Accordingly, a court may exercise personal jurisdiction over a
non-domiciliary if two conditions are met: “first, the non-domiciliary must
transact business within the state; second, the claims against the nondomiciliary must arise out of that business activity.” Aquiline Capital Partners
LLC v. FinArch LLC, 861 F. Supp. 2d 378, 386 (S.D.N.Y. 2012) (quoting CutCo
Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986)).
Motions Under Federal Rule of Civil Procedure 12(b)(4) and
Federal Rule of Civil Procedure 12(b)(4) governs insufficient process,
whereas Rule 12(b)(5) governs insufficient service of process. “Objections to
sufficiency of process under Fed. R. Civ. P. 12(b)(4) must identify substantive
deficiencies in the summons, complaint or accompanying documentation.”
Gianatasio v. D’Agostino, No. 11 Civ. 3095 (RWS), 2011 WL 5244961, at *2
(S.D.N.Y. Nov. 2, 2011). “A Rule 12(b)(4) motion is proper only to challenge
noncompliance with the provision of Rule 4(b) or any applicable provision
incorporated by Rule 4(b) that deals specifically with the content of the
summons.” Id. (internal quotation marks omitted).
Separately, “[b]efore a federal court may exercise personal jurisdiction
over a defendant, the procedural requirement of service of summons must be
satisfied.” Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104
(1987). Under Rule 12(b)(5), “[o]nce a defendant raises a challenge to the
sufficiency of service of process, the plaintiff bears the burden of proving its
adequacy.” Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F. Supp. 2d
382, 387 (S.D.N.Y. 2002). “When a court considers a motion to dismiss
pursuant to Rule 12(b)(5), it must consider information outside the complaint
to determine whether service was sufficient.” Hernandez v. Mauzone Home
Kosher Prods. of Queens, Inc., No. 12 Civ. 2327 (SJ) (JMA), 2013 WL 5460196,
at *4 (E.D.N.Y. Sept. 30, 2013).
“In deciding a Rule 12(b)(5) motion, a Court must look to Rule 4, which
governs the content, issuance, and service of a summons.” DeLuca v. AccessIT
Grp., Inc., 695 F. Supp. 2d 54, 64 (S.D.N.Y. 2010). Under Rule 4(m), “[i]f a
defendant is not served within 90 days after the complaint is filed, the
court — on motion or on its own after notice to the plaintiff — must dismiss the
action without prejudice against that defendant or order that service be made
within a specified time.” Fed. R. Civ. P. 4(m). If the plaintiff is able to
demonstrate good cause, however, a district court must grant a plaintiff an
extension of time for service. See id.
Even where a plaintiff does not show good cause, district courts may
exercise discretion to grant an extension of time to effect adequate service. See
Zapata v. City of New York, 502 F.3d 192, 196 (2d Cir. 2007); George v. Prof’l
Disposables Int’l, Inc., 221 F. Supp. 3d 428, 433 (S.D.N.Y. 2016). In
determining whether to grant a discretionary extension, courts look to
“[i] whether any applicable statutes of limitations would bar the action once
refiled; [ii] whether the defendant had actual notice of the claims asserted in
the complaint; [iii] whether defendant attempted to conceal the defect in
service; and [iv] whether defendant would be prejudiced by extending plaintiff’s
time for service.” DeLuca, 695 F. Supp. 2d at 66.
Motions Under Federal Rule of Civil Procedure 12(b)(6)
When considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a court must “draw all reasonable inferences in [the
plaintiff’s] favor, assume all well-pleaded factual allegations to be true, and
determine whether they plausibly give rise to an entitlement to relief.” Faber v.
Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks
omitted). Thus, “[t]o survive a motion to dismiss, 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
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “While Twombly does not
require heightened fact pleading of specifics, it does require enough facts to
‘nudge [a plaintiff’s] claims across the line from conceivable to plausible.’” In re
Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 550
U.S. at 570). “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 (quoting Twombly,
550 U.S. at 557). Moreover, “the tenet that a court must accept a complaint’s
allegations as true is inapplicable to threadbare recitals of a cause of action’s
elements, supported by mere conclusory statements.” Id. at 663.
In addition, the Court is obligated to construe the submissions of pro se
litigants like Plaintiff liberally “to raise the strongest arguments they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting
Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)); see generally McLeod v.
Jewish Guild for the Blind, 864 F.3d 154, 158 (2d Cir. 2017). To this end, the
Court has considered factual assertions made by Plaintiff during the premotion conference on this matter and in his opposition papers. See Walker v.
Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (“A district court deciding a
motion to dismiss may consider factual allegations made by a pro se party in
his papers opposing the motion.”).
In considering a motion to dismiss, the Court may consider matters of
which judicial notice may be taken under Fed. R. Evid. 201, including public
records such as Plaintiff’s arrest reports, indictments, and criminal disposition
data. See Kramer v. Time Warner Inc., 937 F.2d 767, 773-75 (2d Cir. 1991)
(holding that the Court may consider matters of which judicial notice may be
taken under Fed. R. Evid. 201); see also Awelewa v. New York City, No. 11 Civ.
778 (NRB), 2012 WL 601119, at *2 (S.D.N.Y. Feb. 23, 2012) (judicial notice may
be taken of arrest reports, criminal complaints, indictments, and criminal
disposition data (citing Wims v. N.Y.C. Police Dep’t, No. 10 Civ. 6128 (PKC),
2011 WL 2946369, at *2 (S.D.N.Y. July 20, 2011))). Where the Court takes
judicial notice, it does so “in order to determine what statements [the public
records] contained ... not for the truth of the matters asserted.” Roth v.
Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (internal quotation marks and
emphases omitted) (quoting Kramer, 937 F.3d at 774).
The Court Denies Wittner’s Motion to Dismiss the 9621 Complaint
Pursuant to Rule 12(b)(1)
Justice Wittner argues that this Court lacks jurisdiction to consider
Plaintiff’s claims against her on the basis of sovereign immunity. 4 “The
Eleventh Amendment bars damages actions in federal court against a state and
against state officials acting in their official capacities, unless the state waives
sovereign immunity or Congress abrogates it.” Chris H. v. New York, 740 F.
On August 14, 2018, Defendant MCU filed a motion to dismiss that referenced
Rule 12(b)(1). (1800 Dkt. #211). However, the accompanying memorandum of law
made arguments only under Rule 12(b)(6) (1800 Dkt. #212), as did two later
declarations (1800 Dkt. #215, 273).
App’x 740, 741 (2d Cir. 2018) (summary order). Accordingly, Justice Wittner is
entitled to sovereign immunity for any claims against her in her official
capacity. However, in his Opposition, Plaintiff clarifies that “this argument is
moot since Plaintiff only alleges claims against [Judge Wittner] in her individual
capacity.” (9621 Pl. Opp. 6). For that reason, Judge Wittner’s motion to
dismiss the Complaint pursuant to Rule 12(b)(1) is denied, though several of
her arguments are addressed again in the Court’s discussion of Rule 12(b)(6).
The Court Grants Defendant Facebook’s Motion to Dismiss the 1800
Complaint Pursuant to Rule 12(b)(2)
Defendant Facebook, for its part, moves to dismiss the Complaint against
it for lack of personal jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(2). (1800 Dkt. #185). Finding that the Court lacks both
general and specific jurisdiction over this defendant, the Court grants
The Court Lacks General Jurisdiction over Facebook
A court’s exercise of general jurisdiction under New York Civil Practice
Law and Rules § 301 requires that “a company has engaged in such a
continuous and systematic course of doing business in New York that a finding
of its presence in New York is warranted.” Sonera Holding B.V. v. Cukurova
Holding A.Ş., 750 F.3d 221, 224 (2d Cir. 2014) (internal quotations and
citations omitted); see generally Daimler AG v. Bauman, 571 U.S. 117, 137-38
(2014). Facebook’s “continuous activity of some sort within a state … is not
enough to support the demand that the corporation be amendable to suits
unrelated to that activity.” Goodyear Dunlop Tires Ops. v. Brown, 564 U.S. 915,
927 (2011) (internal quotation marks omitted) (quoting Int'l Shoe Co. v. State of
Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 318 (1945)).
Rather, a corporation’s “affiliations with the State” must be “so ‘continuous and
systematic’ as to render [it] essentially at home in the forum State.” Id. at 919
(quoting Int’l Shoe, 326 U.S. at 317).
In its opening brief, Facebook argues that a district court in New York
cannot properly exercise general jurisdiction over the company because
Facebook is incorporated in Delaware and has a principal place of business in
Menlo Park, California. (Facebook Br. 11). Facebook is correct that, broadly
speaking, general jurisdiction does not lie over a party in a forum where that
entity is neither incorporated nor maintains its principal place of business.
Goodyear, 564 U.S. at 924. That said, “Goodyear did not hold that a
corporation may be subject to general jurisdiction only in a forum where it is
incorporated or has its principal place of business; it simply typed those places
paradigm all-purpose forums.” Daimler, 571 U.S. at 137 (alteration in original).
Plaintiff counters that because Facebook is registered to do business in
New York and has two offices in New York City, the Court is in fact able to
exercise general jurisdiction over Defendant. (1800 Pl. Opp. 11). However,
these contacts do not rise to the level required to “render [Defendant]
essentially at home in [New York].” Goodyear, 564 U.S. at 919. Defendant’s
offices in New York must be viewed relative to Defendant’s overall activity
“nationwide and worldwide,” a view that dramatically lessens their significance.
Daimler, 571 U.S. at 143. “[L]ess than 7% of [Facebook’s] global workforce is
located in its New York office.” (Facebook Br., Duffey Decl. ¶ 3). Furthermore,
“[t]he mere fact of a defendant’s being registered to do business is insufficient
to confer general jurisdiction in a state that is neither its state of incorporation
nor its principal place of business.” D’Amico Dry D.A.C. v. Primera Mar. (Hellas)
Ltd., 348 F. Supp. 3d 365, 387 (S.D.N.Y. 2018).
Plaintiff cannot support an argument that Facebook’s activities in New
York constitute an exceptional case where general jurisdiction would properly
lie over a corporation “in a forum other than its formal place of incorporation or
principal place of business.” Daimler, 571 U.S. at 139 n.19. Accordingly, the
Court does not exercise general jurisdiction over this Defendant.
The Court Lacks Specific Jurisdiction over Facebook
In his Opposition, Plaintiff focuses almost exclusively on establishing the
Court’s ability to exercise general jurisdiction over Facebook. However, he does
reference, albeit obliquely, New York’s long-arm statute. (See 1800 Pl.
Opp. 11). The Court suspects that Plaintiff conflates general and personal
jurisdiction and, thus, with the appropriate solicitude to Plaintiff’s pro se
status, it addresses whether Facebook is subject to specific jurisdiction under
New York’s long-arm statute authorizes courts to exercise personal
jurisdiction “over any non-domiciliary ... who in person or through an agent ...
transacts any business within the state,” so long as the cause of action “aris[es]
from” that transaction. N.Y. C.P.L.R. § 302(a)(1). Accordingly, a court may
exercise personal jurisdiction over a non-domiciliary if two conditions are met:
“first, the non-domiciliary must transact business within the state; second, the
claims against the non-domiciliary must arise out of that business activity.”
Aquiline Capital Partners LLC v. FinArch LLC, 861 F. Supp. 2d 378, 386
(S.D.N.Y. 2012) (internal citations and quotations omitted).
A defendant transacts business within a state if it has “purposefully
availed [it]self of the privilege of conducting activities within New York and
thereby invoked the benefits and protections of its laws.” United States v.
Prevezon Holdings Ltd., 122 F. Supp. 3d 57, 76 (S.D.N.Y. 2015) (quoting Reich
v. Lopez, 38 F. Supp. 3d 436, 457 (S.D.N.Y. 2014)). Here, Facebook has plainly
availed itself of New York law. In addition to being registered to do business in
New York, the company has two offices in New York City, where 7% of its global
workforce is located. (Facebook Br., Duffey Decl. ¶ 3). Facebook’s contacts
meet the low threshold specified in N.Y. C.P.L.R. § 302(a)(1) — a threshold that
courts have found may be satisfied by a single act within New York. See Licci,
673 F.3d at 62. Accordingly, the Court considers whether Plaintiff’s claim
against Facebook arises out of Facebook’s business activity within New York
Plaintiff does not make any argument, either in the Complaint or his
opposition, that his claims — all of which relate to Facebook’s voluntary
disclosure of his personal information — arise out of in-state business activity.
In point of fact, it is almost certainly the case that Plaintiff’s claims against
Facebook arise out of the latter’s activity in California, where its records
custodians are located. (Facebook Br., Duffey Decl. ¶ 5). Accordingly, New
York’s long-arm statute does not confer jurisdiction over Plaintiff’s claim
against Facebook. See Best Van Lines, Inc. v. Walker, 490 F.3d 239, 246 (2d
Cir. 2007) (finding that to support jurisdiction under N.Y. C.P.L.R. § 302, there
must be “an articulable nexus, or a substantial relationship, between the claim
asserted and the actions that occurred in New York”). Defendant Facebook’s
motion to dismiss the 1800 Complaint for lack of personal jurisdiction under
Rule 12(b)(2) is granted. 5 All claims against Facebook are dismissed.
The Court Denies the DA Defendants’ Motion to Dismiss the 1800
Complaint Pursuant to Rule 12(b)(5)
The DA Defendants move to dismiss the 1800 Complaint, as it pertains
to them, for insufficient service of process under Rule 12(b)(5), arguing that
they have not been served. (1800 DA Br. 29-30). As Plaintiff points out, they
are incorrect. (1800 Pl. Opp. 10). All but one of the DA Defendants were
served on August 17, 2018. (Id.; 1800 Dkt. #222-25). The remaining
defendant, Elizabeth Pederson, waived service of summons on December 28,
2018. (1800 Dkt. #261). In their reply, buried in a footnote, the DA
Defendants concede that their initial representations to the Court regarding
lack of service were incorrect. (1800 DA Reply 1 n.1). Despite that concession,
“[t]he DA [D]efendants continue to rely on their argument that Plaintiff failed to
effect personal jurisdiction[.]” (Id.).
Defendant Google joined in Facebook’s Motion to Dismiss, supporting Memorandum of
Law, and Reply Memorandum of Law, but only to the extent that Facebook’s motion
sought to dismiss the 1800 Complaint for failure to state a claim pursuant to
Rule 12(b)(6). (1800 Dkt. #189, 290). Google does not assert a personal jurisdictional
defense, and therefore does not join in Facebook’s motion to dismiss pursuant to
Rule 12(b)(2). The Court addresses Plaintiff’s claims against Google infra.
In light of Plaintiff’s pro se status and his diligent communications with
the Court regarding service issues, the Court will not dismiss the case for
insufficient service. To begin, “as an incarcerated pro se litigant proceeding in
forma pauperis, [Plaintiff] was entitled to rely on service by the U.S. Marshals.”
Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir. 1986) (citing Fed. R.
Civ. P. 4(c)(2)(B)(i)). The Second Circuit has further cautioned that, when
deciding service issues in pro se cases, district courts must construe Rule 4
As we observed in Grammenos v. Lemos, 457 F.2d 1067,
1070 (2d Cir. 1972), Rule 4 of the Federal Rules is to be
construed liberally “to further the purpose of finding
personal jurisdiction in cases in which the party has
received actual notice.” We further noted that
“incomplete or improper service will lead the court to
dismiss the action unless it appears that proper service
may still be obtained.” Id.
Jaiyeola v. Carrier Corp., 73 F. App’x 492, 494 (2d Cir. 2003) (summary order).
Here, not only do all of the DA Defendants have actual notice of the 1800
Complaint, but, more importantly, “proper service has been obtained in the
instant case,” id., with respect to all but one of the defendants.
In addition, the Court must “weigh the plaintiff’s reasonable efforts and
diligence against the prejudice to the defendant resulting from the delay.”
DeLuca, 695 F. Supp. 2d at 66. The DA Defendants argue that, despite being
entitled to rely on the Marshals, Plaintiff alone is at fault for the delay in
effecting service. (1800 DA Br. 29-30). Specifically, these Defendants claim
that Plaintiff “is the source of confusion over the failure to serve the complaint
[because] Plaintiff filed a document labeled as a ‘complaint supplement’ which
can be readily confused with the complaint.” (Id. at 29).
The DA Defendants were served with the Complaint Supplement, but
not the Complaint, on September 27, 2016. (1800 Dkt. #98). 6 They promptly
notified the Court of this deficiency. (Id.). However, in their briefing, the DA
Defendants ignore the fact that Plaintiff made repeated attempts to remedy any
service errors. On October 19, 2016, Plaintiff submitted a response to the
Court seeking clarification from the Marshals as to how, and with what
documents, each DA Defendant had been served. (1800 Dkt. #110). Because
the case was then stayed pending resolution of Plaintiff’s appeal of his
underlying criminal conviction, the Court did not immediately resolve the
issue. (1800 Dkt. #114).
Given Plaintiff’s diligence in communicating with the Court, he will not
be found at fault for any service delays. Over the past four years, Plaintiff has
repeatedly written to the Court providing service updates or seeking to verify
the status of his service requests. (See, e.g., 1800 Dkt. #28, 43, 84, 110, 122,
128, 141, 153, 246, 251, 270). Cf. Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir.
2012) (finding no abuse of discretion by district court in dismissing case when
plaintiff did not raise the issue of pending service with the court). The Court
itself has noted that other factors, including the two stays in the case, may
Plaintiff filed the Complaint Supplement under seal on May 19, 2015, to supplement
redacted information in the 1800 Complaint. (1800 Dkt. #13). That information
included Plaintiff’s social security number and financial account numbers, as well as
the full names of minors and alleged victims of Plaintiff’s underlying criminal violations.
have complicated Plaintiff’s attempts to effect timely service. (See 1800 Dkt.
#155 (“[G]iven the lengthy stay in this case, it is possible that service attempts
were interrupted or otherwise failed.”)).
Undeterred, the DA Defendants cite to Meilleur, 682 F.3d at 63, where
the Second Circuit found that the district court’s dismissal of a pro se case for
failure to achieve timely service was not reversible error. (See 1800 DA Br. 2930). Although Meilleur is distinguishable from the instant action — the Meilleur
plaintiff did not apprise the court of status of process or request an
extension — the Second Circuit’s language is illuminating. Even while
affirming the district court, the Second Circuit noted that the lower court’s
holding was “harsh and we might well have exercised discretion differently were
it for us to decide in the first instance.” Meilleur, 682 F.3d at 63. Thus, for the
reasons set forth here, the DA Defendants’ motion to dismiss the 1800
Complaint against them for insufficient service of process under Rule 12(b)(5)
The Court Dismisses Some, But Not All, of the Claims in the
1800 Complaint Pursuant to Rule 12(b)(6)
The remaining arguments of the Moving Defendants are made pursuant
to Rule 12(b)(6), and concern Plaintiff’s alleged failures to state a claim. The
Court therefore proceeds to consider these claims on the merits, beginning with
Plaintiff’s claims in the 1800 Complaint, which focus on conduct before and
immediately following Plaintiff’s 2012 arrest.
Plaintiff brings a combination of constitutional, statutory, and state-law
claims, many of which the Court previously addressed in its 2015 Order to
Amend. (1800 Dkt. #15). The Court will address each category of claims in
turn, ultimately dismissing all of the claims in the 1800 Complaint with the
exceptions of certain of Plaintiff’s claims for malicious abuse of process and
unlawful search and seizure.
Claims Under 42 U.S.C. § 1983
Plaintiff brings federal claims under Section 1983, which establishes
liability for deprivation, under the color of state law, “of any rights, privileges,
or immunities secured by the Constitution.” 42 U.S.C. § 1983. “The purpose
of § 1983 is to deter state actors from using the badge of their authority to
deprive individuals of their federally guaranteed rights and to provide relief to
victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992)
(citation omitted). As such, a “§ 1983 claim has two essential elements: [i] the
defendant acted under color of state law; and [ii] as a result of the defendant’s
actions, the plaintiff suffered a denial of h[is] federal statutory rights, or h[is]
constitutional rights or privileges.” Annis v. County of Westchester, 136 F.3d
239, 245 (2d Cir. 1998); see also City of Oklahoma City v. Tuttle, 471 U.S. 808,
816 (1985) (“By its terms, of course, [42 U.S.C. § 1983] creates no substantive
rights; it merely provides remedies for deprivations of rights established
As a prerequisite to an award of damages under Section 1983, a plaintiff
must show the personal involvement of the defendants in the alleged
constitutional deprivations. See Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.
2006). To show personal involvement, a plaintiff must plead “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. “A pleading that
offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a
cause of action will not do.’” Id. (citing Twombly, 550 U.S. at 555).
A court may consider supervisory personnel to be “personally involved” if
a plaintiff plausibly alleges facts showing that those defendants: (i) participated
directly in the alleged constitutional violation; (ii) failed to remedy the wrong
after being informed of it; (iii) created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance of such a
policy or custom; (iv) were grossly negligent in supervising subordinates who
committed the wrongful acts; or (v) exhibited deliberate indifference to the
rights of citizens by failing to act on information indicating there were ongoing
unconstitutional acts. Grullon v. City of New Haven, 720 F.3d 133, 138 (2d
Cir. 2013) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). 7
Municipal entities may be sued directly for constitutional violations
pursuant to 42 U.S.C. § 1983, see Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
690 (1978), but cannot be held liable for the acts of their employees under the
doctrine of respondeat superior, see Pembaur v. City of Cincinnati, 475 U.S.
Courts have disagreed as to whether the five Colon factors continue to apply after Iqbal.
See Landron v. City of New York, No. 14 Civ. 1046 (NRB), 2014 WL 6433313, at *4 n.1
(S.D.N.Y. Nov. 7, 2014) (collecting cases); Vogelfang v. Capra, 889 F. Supp. 2d 489, 502
(S.D.N.Y. 2012) (same); see also Raspardo v. Carlone, 770 F.3d 97, 116-17 (2d Cir.
2014) (declining to decide the degree to which Colon survives Iqbal). Any such
uncertainty, however, does not alter settled law that “[t]he mere fact that a defendant
possesses supervisory authority is insufficient to demonstrate liability for failure to
supervise under § 1983.” Styles v. Goord, 431 F. App’x 31, 33 (2d Cir. 2011) (summary
order) (collecting cases).
469, 478 (1986). In other words, “Monell does not provide a separate cause of
action for the failure by the government to train its employees; it extends
liability to a municipal organization where that organization’s failure to train,
or the policies or customs that it has sanctioned, led to an independent
constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.
2006) (citing Monell, 436 U.S. at 694) (emphasis in Segal).
A plaintiff may establish municipal liability under Monell in several ways,
including by presenting evidence of
[i] an express policy or custom, [ii] an authorization of a
policymaker of the unconstitutional practice, [iii] failure
of the municipality to train its employees, which
exhibits a “deliberate indifference” to the rights of its
citizens, or [iv] a practice of the municipal employees
that is “so permanent and well settled as to imply the
constructive acquiescence of senior policymaking
Biswas v. City of New York, 973 F. Supp. 2d 504, 536 (S.D.N.Y. 2013) (quoting
Pangburn v. Culbertson, 200 F.3d 65, 71-72 (2d Cir. 1999)).
The Court Dismisses in Part and Sustains in Part Plaintiff’s
Constitutional Claims Against the Government Defendants
Plaintiff’s Speedy Trial, False Arrest, False
Imprisonment, Fabrication of Evidence, and Malicious
Prosecution Claims Are Barred by Heck
As pleaded, Plaintiff’s speedy trial, false arrest, false imprisonment,
fabrication of evidence, and malicious prosecution claims are barred because
Plaintiff’s criminal proceedings were not terminated in his favor, as required by
Heck v. Humphrey, 512 U.S. 477 (1994).
In Heck, the Supreme Court established a favorable termination
requirement for § 1983 actions that do not “seek damages directly attributable
to conviction or confinement but whose successful prosecution would
necessarily imply that the plaintiff’s criminal conviction was wrongful.” 512
U.S. at 486 n.6. In relevant part, the Supreme Court held that
unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness
would render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, 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.
Id. at 477; cf. Poventud v. City of New York, 750 F.3d 121 (2d Cir. 2014) (en
banc) (allowing claim for failure to disclose exculpatory evidence before trial to
proceed, despite subsequent guilty plea to lesser included offense).
Plaintiff asserts that the dismissal of the state charges brought against
him constitutes a favorable termination, and thus that none of his § 1983
claims is barred by Heck. (1800 Compl. ¶ 46; 1800 Pl. Opp. ¶ 26). A brief
overview of the procedural history of the case — particularly the relationship
between the state and federal charges — is necessary to address Plaintiff’s
To review, the NYPD arrested Plaintiff on January 25, 2012. (1800
Compl. ¶ 43; 1800 DA Br., Ante Decl., Ex. E at 3). On January 26, 2012,
Plaintiff was presented in New York County Supreme Court on a felony
complaint. (1800 Compl. ¶ 44; 1800 DA Br., Ante Decl., Ex. E at 3). The same
day, a New York County grand jury filed an indictment charging Plaintiff with
two counts of promoting prostitution. (Id.). Plaintiff was arraigned on this
indictment on February 15, 2012. (1800 DA Br., Ante Decl., Ex. E at 3).
On January 22, 2013, Corley was indicted in this District, on two counts
of sex trafficking of a minor. See United States v. Corley, No. 13 Cr. 48 (AJN),
2016 WL 9022508, at *1 (S.D.N.Y. Jan. 15, 2016). An additional count of sex
trafficking of a minor, and one count of possession of child pornography, were
added in a superseding indictment on October 10, 2013. See id. Because the
subject matter of the federal indictments included the criminal conduct
charged under the New York County indictment, the DANY recommended that
the New York County indictment be dismissed. (1800 DA Br., Ante Decl., Ex. E
at 4-6). 8 On February 1, 2013, the state charges were dismissed in their
entirety. (1800 Compl. ¶ 46).
On April 21, 2014, Plaintiff was convicted on all three counts of his
federal indictment after a jury trial. (1800 DA Br., Ante Decl., Ex. G).
Plaintiff’s conviction was upheld by the Second Circuit and his petition for writ
of certiorari was denied by the Supreme Court. See United States v. Corley,
679 F. App’x 1, 8 (2d Cir. 2017) (summary order), cert. denied, 138 S. Ct. 205
Under the double jeopardy provisions of New York Criminal Procedure Law § 40.20, any
disposition of the federal indictment would bar subsequent proceedings under the New
York County indictment. See People v. Abbamonte, 43 N.Y.2d 72 (1977) (interpreting
C.P.L. § 40.20, a state prosecution is barred whenever “the particular activity for
which the State seeks to hold defendants responsible were or could have been alleged to
support” previous federal charges).
In the instant action, Plaintiff argues that none of his claims is barred by
Heck for a litany of reasons, including that: (i) the dismissal of the state
indictment in 2013 was a termination in his favor (1800 Compl. ¶ 46; 1800 Pl.
Opp. 26); (ii) his pending motions for a new trial under Federal Rule of Criminal
Procedure 33 and for vacatur pursuant to 28 U.S.C. § 2255 could reverse his
conviction (1800 Pl. Opp. 27); (iii) he will eventually be released from custody
(id.); (iv) the “split verdict” renders Heck inapposite (id. at 27-28); and (v) the
application of Heck causes prejudice (id. at 28). The Court addresses each
argument in turn.
Where, as here, “the Federal and State actions are inextricably
intertwined and substantially related to one another, the Heck rule applies to
bar Section 1983 claims based on the dismissed state charges.” Bogle v.
Melamed, No. 09 Civ. 1017 (RJD), 2012 WL 1117411, at *3 (E.D.N.Y. Mar. 30,
2012) (quoting Thompson v. Delvalle, No. 07 Civ. 4691 (BSJ), 2010 WL
2505638, at *3 (S.D.N.Y. June 21, 2010)). In this case, Plaintiff was arrested
on federal charges arising out of the same events and conduct underlying the
state charges. (1800 DA Br., Ante Decl., Ex. E at 4-6). In his Opposition,
Plaintiff argues that the state charges were not identical to the federal charges,
which covered a broader range of conduct. (See 1800 Pl. Opp. 26-27).
However, Heck does not require that the state and federal charges be identical;
instead, Heck applies when the dismissed state and federal charges derive from
substantially the same conduct. See Bogle, 2012 WL 1117411, at *3.
Therefore, since Plaintiff was convicted on federal charges stemming from the
precise conduct underlying his dismissed state charges, the dismissal of the
state charges was not a favorable termination. See Thompson, 2010 WL
2505638, at *3.
Plaintiff’s remaining arguments do not compel a different conclusion.
First, neither Plaintiff’s pending motions, nor his eventual release, has any
effect on the applicability of Heck. See Magnotta v. Putnam Cty. Sheriff, No. 13
Civ. 2752 (GBD) (GWG), 2014 WL 705281, at *5 (S.D.N.Y. Feb. 24, 2014) (“Nor
does the fact that [plaintiff] is actively appealing his criminal conviction … lift
the Heck bar inasmuch as the plaintiff in Heck itself was also pursuing an
appeal of his criminal conviction at the time he brought his § 1983 claims.”
(citing Heck, 512 U.S. at 478-79)). 9 Second, although a “split verdict” can
render the Heck bar inapplicable in some circumstances, see Dunham v. City of
New York, 295 F. Supp. 3d 319, 333 (S.D.N.Y. 2018), no split verdict occurred
here; Plaintiff was convicted of all counts in the federal indictment, see Corley,
679 F. App’x at 3.
Finally, Plaintiff’s argument that “Defendants willfully forfeited a trial to
prove the strength of their case, [while trying] to ride on the coattails of a
federal conviction,” is nonsensical. (1800 Pl. Opp. 28). The DANY can hardly
be said to have forfeited anything; it dismissed its indictment in favor of a
federal indictment with additional charges and greater penalties. The result of
Plaintiff’s “eventual release” argument is likely sourced to an exception to the Heck bar
recognized by the Second Circuit, which permits § 1983 claims to proceed where the
plaintiff is no longer in custody and cannot pursue habeas relief. See Huang v.
Johnson, 251 F.3d 65, 73-75 (2d Cir. 2001). However, because Plaintiff remains
incarcerated, this exception is inapplicable to the instant action.
the federal prosecution suggests the strength of the DANY’s evidence. Despite
the fact that Plaintiff may be “unable to reverse his federal conviction” (id.),
Defendants did not improperly invoke Heck, see 512 U.S. at 484-85 (“This
Court has long expressed … concerns for finality and consistency and has
generally declined to expand opportunities for collateral attack[.]”).
Given the lack of a favorable termination, the Court now examines which
of Plaintiff’s claims implicate the validity of his conviction and thus are barred
by Heck. Count XII of the 1800 Complaint, Plaintiff’s Sixth Amendment speedy
trial claim, necessarily implies that his conviction was erroneous and must be
dismissed. See Montane v. Pettie, No. 10 Civ. 4404, 2012 WL 1617713 (ARR),
at *3 (E.D.N.Y. May 8, 2012) (dismissing speedy trial claim as well as malicious
prosecution claim under Heck); Davis v. New York, No. 90 Civ. 6170 (MBM),
2003 WL 1787151, at *1 (S.D.N.Y. Apr. 2, 2003) (dismissing speedy trial claim);
see also Zarro v. Spitzer, 274 F. App’x 31, 34 (2d Cir. 2008) (summary order)
(affirming sua sponte dismissal of claims raising questions about plaintiff’s
Sixth Amendment right to counsel because such claims implicated the validity
Plaintiff’s false arrest and false imprisonment claims, in Counts VI and
VII of the 1800 Complaint, are also barred because relief would imply the
invalidity of Plaintiff’s conviction. See Younger v. City of New York, 480 F.
Supp. 2d 723, 730 (S.D.N.Y. 2007) (finding that claims for false arrest and false
imprisonment were barred by Plaintiff’s conviction); see also Magnotta, 2014
WL 705281, at *5 (dismissing Plaintiff’s false arrest claim “as success on that
claim would necessarily imply the invalidity of the conviction resulting from
In Counts IV and V of the 1800 Complaint, Plaintiff alleges that the
Government Defendants fabricated and altered physical evidence and coerced
informants into giving false statements. (1800 Compl. ¶¶ 37-41, 75-76). The
Court construes these allegations as claims for fabrication of evidence, in
violation of Plaintiff’s right to a fair trial. See Garnett v. Undercover Officer
C0039, 838 F.3d 265, 278 (2d Cir. 2016). They, too, necessarily imply that
Plaintiff’s underlying conviction was wrongful. Here, as in Warren v. Fischl,
although Plaintiff has “not in so many words challenged the lawfulness of his
conviction,” the Court does “not doubt that his allegations of extensive
conspiratorial misconduct between [the police] and the prosecution would
render the conviction invalid if they were proved.” 674 F. App’x 71, 73 (2d Cir.
2017) (summary order) (finding that Plaintiff’s fabrication of evidence claims
were barred by Heck), cert. denied, 138 S. Ct. 123 (2017). For that reason,
Plaintiff’s fair trial claims are barred by Heck. See also Smalls v. City of New
York, 181 F. Supp. 3d 178, 185 (E.D.N.Y. 2016) (“A fabrication of evidence
claim, like a malicious prosecution claim, seeks to impugn the validity of the
Finally, favorable termination is an element of a malicious prosecution
claim. See Heck, 512 U.S. at 484-86. As Plaintiff has not shown favorable
termination, his malicious prosecution claim, alleged in Count XI of the 1800
Complaint, cannot survive. In sum, Heck and its progeny require that
Plaintiff’s speedy trial, false arrest, false imprisonment, fabrication of evidence,
and malicious prosecution claims be dismissed.
Plaintiff’s Claims for Substantive Due Process and
Conspiracy to Violate His Due Process Rights Fail
As clarified in his 1800 Complaint and Opposition, Plaintiff’s claims for
“Outrageous Government Conduct” and “Harassment” are properly construed
as substantive due process claims. (See 1800 Compl. ¶ 74; 1800 Pl. Opp. 13).
Therefore, in order to survive a motion to dismiss, Plaintiff must allege
government conduct that “is so egregious, so outrageous, that it may fairly be
said to shock the contemporary conscience.” Velez v. Levy, 401 F.3d 75, 93 (2d
Cir. 2005) (internal quotations and citations omitted).
Plaintiff’s claim for substantive due process includes ample factual
allegations, including five additional pages of briefing on the issue in his
Opposition. (1800 Compl. ¶¶ 27-33; 1800 Pl. Opp. 13-17). Length, however,
does not equal substance: Plaintiff’s briefing, even liberally read, distills to
allegations that the Government Defendants used informants in the course of
undercover operations. Specifically, Plaintiff claims that the Government
Defendants worked with alleged prostitutes as confidential informants, while
investigating alleged pimps and “individuals they believed to be associated with
the Plaintiff.” (1800 Compl. ¶ 30). Plaintiff does not indicate that the
Government’s conduct affected him. To the contrary, he asserts that he
“declin[ed] to do any business” with any of the alleged informants. (Id. at ¶ 34).
The conduct alleged to have been undertaken by the Government
Defendants does not shock the contemporary conscience. See Matican v. City
of New York, 524 F.3d 151, 159 (2d Cir. 2008) (finding that law enforcement’s
design of sting operation, including participation of informant, did not shock
the conscience). Nor do Plaintiff’s sweeping statements that Defendants
“forc[ed] an underage girl to engage in prostitution in order to fraudulently
arrest her pimp” (1800 Pl. Opp. 13), or that they “encouraged and promoted
prostitution” (id. at 17), cure the 1800 Complaint’s deficiencies. Plaintiff’s
factual basis for these statements is that the Government Defendants
simultaneously pursued investigations into suspected prostitution while
meeting with potential informants who may have been prostitutes, some of
whom may have been underage. (Id. at 15). If true, that conduct is neither
inconsistent nor illegal, much less outrageous.
Finally, Plaintiff’s harassment claim lacks any factual development.
Plaintiff merely claims that the Government Defendants “engag[ed] in a
systematic and intentional pattern of harassment by abusing legal process to
deliberately invade Plaintiff’s privacy without probable cause[.]” (1800 Compl.
¶ 74). Although it reads Plaintiff’s claims to raise the strongest arguments they
suggest, the Court is not obligated to accept as true legal conclusions
masquerading as factual allegations. See Rolon v. Henneman, 517 F.3d 140,
148-49 (2d Cir. 2008). Without any supporting factual allegations, Plaintiff’s
claim of harassment does not suffice to save his due process claim.
Counts I and III of the 1800 Complaint are dismissed by reason of this
analysis. By extension, Count II, which alleges conspiracy to violate Plaintiff’s
substantive due process rights, also fails. See Curley v. Vill. of Suffern, 268
F.3d 65, 72 (2d Cir. 2001) (finding that plaintiffs may not maintain a § 1983
claim for conspiracy if they cannot establish the underlying constitutional
violation). Plaintiff’s conspiracy claim relies on the same due process
allegations — that the Government Defendants engaged in undercover
operations to root out prostitution of underage victims and met with
informants in furtherance of that process. (1800 Compl. ¶¶ 34-36). Because
Plaintiff has not plausibly alleged a constitutional violation of his due process
rights, his conspiracy claim is dismissed.
Plaintiff’s Claim for Malicious Abuse of Process Survives
in Part and Fails in Part
In Counts IX and X of the 1800 Complaint, Plaintiff advances two claims
for malicious abuse of process. (1800 Compl. ¶¶ 80-81). First, Plaintiff alleges
that the Government Defendants “arrest[ed] Plaintiff to compel his cooperation
in Nuisance Abatement proceedings” (1800 Pl. Opp. 19), against “numerous
Manhattan property owners” (1800 Compl. ¶ 50). Specifically, Plaintiff claims
that during an interrogation in January 2012, one of the Government
Defendants, Detective Woods, informed Plaintiff that the DA Defendants were
“interested in Plaintiff’s cooperation regarding the owners of apartment
buildings alleged to be involved with illegal activities.” (Id. at ¶ 49). When
Plaintiff declined to cooperate, the Government Defendants arrested him. (Id.).
Second, Plaintiff claims that the Government Defendants, with knowledge that
Plaintiff was seeking proof of employment with Con Edison to obtain lower bail,
“disclos[ed] Grand Jury evidence to [Con Edison] which effectively caused his
termination.” (1800 Pl. Opp. 19).
To state a claim for malicious abuse of process under New York law,
Plaintiff must allege “that defendant [i] employed regularly issued legal process
to compel performance or forbearance of some act, [ii] with the intent to do
harm without excuse or justification, and [iii] in order to obtain a collateral
objective that is outside the legitimate ends of the process.” Arrington v. City of
New York, 628 F. App’x 46, 49 (2d Cir. 2015) (summary order) (brackets
omitted) (quoting Savino v. City of New York, 331 F.3d 63, 76 (2d Cir. 2003)).
To raise this claim under § 1983, a plaintiff must allege an abuse of the
criminal process. See Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994). What is
more, in the criminal context, a plaintiff must allege “a collateral purpose
beyond or in addition to his criminal prosecution.” Savino, 331 F.3d at 77.
Plaintiff plausibly alleges the Government Defendants’ collateral objective
as to his first claim, but not his second. With regards to his first claim,
Plaintiff has alleged that the Government Defendants “had an ulterior purpose
or objective in facilitating his prosecution.” See Savino, 331 F.3d at 78. As
alleged, the Government Defendants suggested to Plaintiff that if he agreed to
do something for them, he would not be arrested. In contrast, Plaintiff’s
second claim does not allege a collateral purpose. While Plaintiff does allege
that the Government Defendants were aware that he was seeking lower bail —
as they necessarily would be — he does not allege that they unlawfully
disclosed grand jury evidence with the purpose of getting him fired. (1800
Compl. ¶ 51). There is, therefore, no indication in the 1800 Complaint that the
Government Defendants sought to achieve a collateral purpose “beyond or in
addition to his criminal prosecution.” Corso v. City of New York, No. 17 Civ.
6096 (NRB), 2018 WL 4538899, at *10 (S.D.N.Y. Sept. 20, 2018); see also
Goldring v. Zumo, No. 14 Civ. 4861 (BMC), 2015 WL 148451, at *3 (E.D.N.Y.
Jan. 12, 2015) (“[I]n the criminal context, harm to a plaintiff's business is not
sufficient unless it is used a means to compel some other result.”). For that
reason, Count IX of the 1800 Complaint succeeds and Count X fails.
Plaintiff’s Claims for Unlawful Search and Seizure
Survive in Part and Fail in Part
Construed liberally, Plaintiff alleges four separate claims for unlawful
searches in violation of the Fourth Amendment in Count VIII of the 1800
Complaint. The first three searches occurred on January 25, 2012, the day of
his arrest; the fourth search took place on February 1, 2012. The Court
addresses each alleged violation in turn.
The Search Incident to Arrest
In his first unlawful search claim, Plaintiff alleges that after he was
arrested on January 25, 2012, “two cellphones, electronic media and credit
cards” were “removed from his person[.]” (1800 Compl. ¶ 47). The Court
understands the allegations to be a claim of unlawful search incident to
The Fourth Amendment, incorporated against the states by the
Fourteenth Amendment, guarantees all individuals the right to be free from
Plaintiff does not allege that the digital contents of his cell phone were searched
incident to his arrest. Accordingly, the Court does not discuss whether Riley v.
California, 573 U.S. 373 (2014), which discusses the circumstances under which cell
phones can be searched without a warrant, is implicated.
unreasonable search and seizure. See, e.g., Mapp v. Ohio, 367 U.S. 643, 655
(1961). While searches typically require a warrant in order to qualify as
“reasonable,” the Supreme Court has held “that in the case of a lawful
custodial arrest a full search of the person is not only an exception to the
warrant requirement of the Fourth Amendment, but is also a ‘reasonable’
search under that Amendment.” United States v. Robinson, 414 U.S. 218, 235
(1973). Furthermore, “a search incident to the arrest requires no additional
justification. It is the fact of the lawful arrest which establishes the authority
to search.” Id. Therefore, whether Plaintiff’s claim survives turns on whether
probable cause existed to arrest Plaintiff, rendering the arrest lawful. If so,
then the search of Plaintiff pursuant to that arrest was reasonable as a matter
Although probable cause is not to be inferred from the allegations in a
complaint, “an individual’s criminal conviction conclusively establishes the
existence of probable cause for his arrest,” for the purposes of a § 1983 action.
Kennedy v. City of New York, No. 12 Civ. 4166 (KPF), 2015 WL 6442237, at *16
(S.D.N.Y. Oct. 23, 2015) (dismissing claim for unlawful search incident to
arrest because a conviction, not reversed on appeal, constitutes evidence of
probable cause); see also Cameron v. Fogarty, 806 F.2d 380, 388-89 (2d Cir.
1986) (“[W]here law enforcement officers have made an arrest, the resulting
conviction is a defense to a § 1983 action asserting that the arrest was made
without probable cause.”). In 2014, Plaintiff was convicted of all of the federal
charges brought against him. His conviction has not been overturned or
invalidated. Thus, there was presumptively probable case for the arrest, and
Plaintiff’s first unlawful search and seizure claim is dismissed. 11
The Workplace Search
Also on the day of his arrest, Plaintiff’s office was searched, and his work
computer seized without a warrant. (1800 Compl. ¶ 47). This search forms the
factual basis of Plaintiff’s second unlawful search claim.
“In the workplace context, the Supreme Court has recognized that
‘employees may have a reasonable expectation of privacy against intrusions by
police.’” United States v. Yudong Zhu, 23 F. Supp. 3d 234, 237 (S.D.N.Y. 2014)
(citing O’Connor v. Ortega, 480 U.S. 709, 716 (1987)). “[T]he question whether
an employee has a reasonable expectation of privacy must be addressed on a
case-by-case basis.” O’Connor, 480 U.S. at 710. To determine whether that
expectation exists, the Court must consider, “[t]he operational realities of the
workplace.” Id. at 717. “[B]oth public and private ‘employees’ expectations of
privacy in their offices, desks, and file cabinets ... may be reduced by virtue of
In the alternative, Plaintiff’s first claim for unlawful search fails because Plaintiff has
not adequately alleged the personal involvement of any defendants. See Farrell v.
Burke, 449 F.3d 470, 484 (2d Cir. 2006) (finding that, as a prerequisite to an award of
damages under § 1983, a plaintiff must show the personal involvement of the
defendants in the alleged constitutional deprivations). On this point, the Government
Defendants argue that Plaintiff has wholly failed to allege their personal involvement.
(See 1800 DA Br. 17-18). However, Plaintiff argues that the Government Defendants
“convolute” his general references to the DA Defendants as “DANY,” and to the NYPD
Defendants as “NYPD.” (1800 Pl. Opp. 9). According to Plaintiff, those abbreviations
were used “solely for brevity,” and are meant to indicate that all referenced defendants
were involved in the alleged conduct. (Id.). With the proper deference due to a pro se
party, the Court accepts Plaintiff’s argument, even as it questions the plausibility of
such allegations. In any event, with regard to his first two unlawful search claims,
Plaintiff does not reference any defendants at all. (1800 Compl. ¶ 47). Plaintiff partially
corrects his omission in his Opposition by naming the officers involved in the second
search, but makes no mention of any officer involvement in the first search. (See 1800
Pl. Opp. 9 (“Sgt. Michael Daly, Det. Jessica Sterling and NYPD Personnel raided
Plaintiff’s home and Con Edison office[.]”)).
actual office practices and procedures, or by legitimate regulation.’” See
Niceforo v. UBS Glob. Asset Mgmt. Americas, Inc., 20 F. Supp. 3d 428, 435
(S.D.N.Y. 2014) (quoting O’Connor, 480 U.S. at 717).
Here, the DA Defendants argue — and the Court agrees — that the
Complaint fails to allege that Plaintiff has any expectation of privacy in his
office or his work computer. (1800 DA Br. 12). In his opposition, Plaintiff
counters that such an argument is “meritless” because, under O’Connor, the
Supreme Court has recognized that employees may have a reasonable
expectation of privacy in the workplace. (1800 Pl. Opp. 19). See also O’Connor,
480 U.S. at 716. While the Court does not dispute Plaintiff’s characterization
of O’Connor’s holding, that does not mitigate Plaintiff’s failure to allege any
facts, either in the 1800 Complaint or in his Opposition, regarding his
expectation of privacy in the workplace. In all of Plaintiff’s submissions to the
Court, including his 66 pages of opposition briefing in the 1800 action, Plaintiff
has never claimed that he could make such a showing. Nor has Plaintiff
proffered specific, non-conclusory factual allegations that he could add in order
to make a showing under O’Connor. For that reason, Plaintiff’s second search
The Warranted Searches
Plaintiff’s final two claims for unlawful search involve warranted
searches. First, Plaintiff alleges that at the same time his office was being
searched, Plaintiff’s apartment was searched without probable cause and
“pursuant to a search warrant based on the bogus sting operation, stale
evidence, fabricated evidence, and tampered witness statements.” (1800
Compl. ¶ 47). Second, on February 1, 2012, Plaintiff’s “cell phone and
electronic media” were searched “pursuant to a search warrant based on the
bogus sting operation, fabricated evidence and false statements.” (Id. at ¶ 48).
To challenge a warranted search as unlawful pursuant to § 1983, “a
plaintiff must make a ‘substantial preliminary showing’ that the affiant
knowingly and intentionally, or with reckless disregard for the truth, made a
material false statement in applying for the warrant.” Calderon v. City of New
York, 138 F. Supp. 3d 593, 604 (S.D.N.Y. 2015) (quoting Rivera v. United
States, 928 F.2d 592, 604 (2d Cir. 1991)). In addition, “the allegedly false
statement [must be] necessary to the finding of probable cause.” Rivera, 928
F.2d at 604 (internal citations and quotations omitted).
Here, Plaintiff offers appropriately specific allegations that, taken as true
for purposes of this motion, just satisfy the pleading threshold. See Velardi v.
Walsh, 40 F.3d 569, 573 (2d Cir. 1994). Broadly, Plaintiff alleges that the
January 25, 2012 search of his apartment, and the February 1, 2012 search of
his cell phone and electronic media were conducted pursuant to warrants that
were “based on the bogus sting operation, stale evidence, fabricated evidence
and tampered witness statements.” (1800 Compl. ¶¶ 47-48). Specifically,
Plaintiff alleges that the Government Defendants altered the unique
identification numbers of Backpage.com advertisements, giving the appearance
that the pages were created by Plaintiff. (Id. at ¶ 38). In addition, the
Government Defendants are alleged to have knowingly used false statements
from informants — and in some instances coerced the informants into giving
the false statements — to manufacture probable cause for the warrants. (Id. at
Plaintiff plausibly pleads, with sufficient factual detail at this stage of the
litigation, that the Government Defendants conducted unlawful searches of his
home and electronic media. Thus, Plaintiff’s third and fourth claims for
unlawful search survive.
Plaintiff’s Privacy Claim Fails
In his final constitutional claim, Plaintiff alleges a violation to his right to
privacy under the First and Fourth Amendments of the Constitution. (1800
Compl. ¶¶ 60, 84). Plaintiff alleges that the Government Defendants and
certain of the Corporate Defendants, including the Con Edison Defendants, TMobile, Facebook, Google, TW, MCU, Capital One, and Chase (collectively, the
“Privacy Defendants”), violated his right to privacy “by intentionally accessing,
intercepting or disclosing Plaintiff’s communications, personal information and
financial records, which Plaintiff had a reasonable expectation of privacy in, or
willfully aided, abetted, counseled, commanded and induced the acts thereof[.]”
(Id. at ¶ 84).
Plaintiff’s privacy claims suffer from two deficiencies. First, Plaintiff’s
claims against the Privacy Defendants are subject to dismissal for failure to
allege state action. See DeMatteis v. Eastman Kodak Co., 511 F.2d 306, 311
(2d Cir. 1975) (finding that private parties generally are not liable under
§ 1983). As clarified in his Opposition, “Plaintiff does not plead any conspiracy
with respect to Private-Defendants,” but merely alleges that they “aided and
abetted state actors,” without any additional factual allegations. (1800 Pl.
Opp. 12). However, this conclusory legal assertion, shorn of any supporting
facts, will not suffice. Although a private individual can be held liable under
§ 1983 if “operat[ing] as a willful participant in joint activity with the State or
its agents,” Abdullahi v. Pfizer, Inc., 562 F.3d 163, 188 (2d Cir. 2009), “merely
supplying information to [law enforcement] does not make the supplier of
information a state actor,” Luciano v. City of New York, No. 09 Civ. 00359 (DC),
2009 WL 1953431, at *2 (S.D.N.Y. July 2, 2009). Without additional factual
allegations as to the joint activity, Plaintiff’s claim as to the Privacy Defendants
Second, and more fundamentally, the Complaint is devoid of any factual
allegations in support of Plaintiff’s claim. Plaintiff’s conclusory allegation that
certain defendants violated his right to privacy by intercepting and voluntarily
disclosing his personal information, without any specific allegations, is
insufficient to defeat the motions to dismiss. Because a complaint must
provide “the grounds upon which [the plaintiff’s] claim rests through factual
allegations sufficient to raise a right to relief above the speculative level,”
Twombly, 550 U.S. at 555 (emphasis added), Plaintiff’s privacy claim at Count
XIII of the 1800 Complaint is dismissed in its entirety.
The Record Does Not Permit the Court to Resolve All of
the Government Defendants’ Arguments for Immunity
Having determined that Plaintiff has plausibly pleaded claims for
malicious abuse of process and unlawful search and seizure, the Court now
considers whether any of the Government Defendants is entitled to immunity. 12
With regards to the DA Defendants, absolute immunity bars a civil suit
against a prosecutor for conduct that is “intimately associated with the judicial
phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976).
Although, “[p]rosecutorial immunity from § 1983 liability is broadly defined,”
Giraldo v. Kessler, 694 F.3d 161, 165 (2d Cir. 2012), “[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 v. Fitzsimmons,
509 U.S. 259, 273 (1993).
Relatedly, the NYPD Defendants enjoy a qualified immunity that shields
them from personal liability for damages under § 1983 insofar as their
“conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known, or it was objectively
reasonable for [him or her] to believe that [his or her] actions were lawful at the
time of the challenged act.” Jenkins v. City of New York, 478 F.3d 76, 87 (2d
As noted, Plaintiff alleges that all of the DA Defendants and all of the NYPD Defendants
participated in the unlawful warranted searches. (1800 Compl. ¶¶ 47-48, 79).
Additionally, Plaintiff brings his malicious abuse of process claim against all of the
NYPD Defendants. (Id. at ¶¶ 49-50).
Cir. 2007) (citations and quotation marks omitted); see also Caceres v. Port
Auth. of N.Y. & N.J., 631 F.3d 620, 622 (2d Cir. 2011).
The Court Cannot Decide Whether the Government
Defendants Are Immune from Liability on
Plaintiff’s Unlawful Search Claims
To review, Plaintiff’s third and fourth unlawful search claims involve,
respectively, the January 25, 2012 search of Plaintiff’s apartment, and the
February 1, 2012 search of Plaintiff’s cell phones and electronic media,
“pursuant to a search warrant based on the bogus sting operation, fabricated
evidence and false statements.” (1800 Compl. ¶¶ 47-48). Although the Court
recognizes “the importance of resolving the question of qualified immunity at
the earliest possible stage in litigation,” see Allah v. Goord, 405 F. Supp. 2d
265, 272 (S.D.N.Y. 2005), many of “the fact intensive question[s]” posed by the
inquiry into immunity cannot be resolved on these motions to dismiss,
Kanciper v. Lato, 989 F. Supp. 2d 216, 233 (E.D.N.Y. 2013).
For starters, the Court does not have adequate information to determine
whether, as argued by the DA Defendants, the prosecutors are entitled to
absolute immunity for drafting and obtaining the search warrants. (See 1800
DA Br. 15-16 (citing Parker v. Zugibe, No. 16 Civ. 4265 (KMK), 2017 WL
4296795, at *3 (S.D.N.Y. Sept. 26, 2017))). While the Supreme Court has
extended absolute immunity to a prosecutor’s “appearance in court in support
of an application for a search warrant and the presentation of evidence at that
hearing,” it has also made clear that not all conduct related to a search
warrant is covered. Burns v. Reed, 500 U.S. 478, 492 (1991). For example,
when a prosecutor is the affiant who swears that probable cause existed to
support the search, she is “acting as a complaining witness rather than a
lawyer,” and is not immune to suit. Kalina v. Fletcher, 522 U.S. 118, 129
For that reason, prior to ruling on immunity, it is critical for the Court to
determine Plaintiff’s “precise claim.” Burns, 500 U.S. at 487. As contemplated
in Burns, “conduct outside of the courtroom relating to the warrant” may not
be covered by absolute immunity. Id. Here, although Plaintiff makes sufficient
factual allegations to state a claim for unlawful search, he has not detailed the
conduct of each of the affected defendants sufficiently to permit the Court to
make an immunity determination. Plaintiff alleges that the DA Defendants
conducted a search pursuant to a deeply flawed warrant, but does not specify
what conduct, or whose conduct, he claims to have been violative.
For the same reason, the Court cannot determine, at this juncture,
whether the NYPD Defendants are entitled to qualified immunity. “Where an
officer knows, or has reason to know, that he has materially misled a
magistrate on the basis for a finding of probable cause, the shield of qualified
immunity is lost.” Rivera, 928 F.2d at 604. However, “if, after crossing out any
allegedly false information and supplying any omitted facts, the ‘corrected
affidavit’ would have supported a finding of probable cause … a qualified
immunity defense must be upheld.” Velardi, 40 F.3d at 573. While the NYPD
Defendants may establish through discovery that there were in fact no errors in
the warrant paperwork, or that a “corrected affidavit” would also have
supported a finding of probable cause, the Court cannot make that finding with
the information currently available on these motions to dismiss. See Kanciper,
989 F. Supp. 2d at 233.
The DA Defendants Are Entitled to Absolute
Immunity on Plaintiff’s Malicious Abuse of Process
Claim; the Court Cannot Decide the Issue with
Regard to the NYPD Defendants
Turning to the malicious abuse of process claim, Plaintiff alleges that
Detective Woods informed him that the DA Defendants were interested in
Plaintiff’s cooperation in New York nuisance abatement proceedings. (1800
Compl. ¶¶ 49, 50). When Plaintiff declined to cooperate, the DANY brought
charges. (Id. at ¶ 49). Of course, prosecutors are entitled to absolute
immunity for acts taken “in initiating a prosecution and in presenting the
State’s case.” Smith v. Garretto, 147 F.3d 91, 94 (2d Cir. 1998). Here, however,
the Court construes Plaintiff’s claim not just to challenge the initiation of the
case, but also to challenge the conditioning of the prosecutorial decision on
Plaintiff’s failure to cooperate in unrelated civil proceedings.
The Second Circuit has held that a prosecutor may lose her shield of
absolute immunity when she agrees to forgo prosecution in exchange for
certain concessions by the accused. See Doe v. Phillips, 81 F.3d 1204, 1210
(2d Cir. 1996). In those situations, a court is to examine “the nature of the
conduct that was allegedly intertwined with the prosecutorial decision.” Id. “If
the prosecutor has acted without any colorable claim of authority to impose the
condition in question, his conduct is not protected by absolute immunity.”
Kent v. Cardone, 404 F. App’x 540, 543 (2d Cir. 2011) (summary order)
(internal citations and quotations omitted).
The Second Circuit has provided several examples of conditions that are
beyond a prosecutor’s authority, including demands for bribes or sexual favors,
see Schloss v. Bouse, 876 F.2d 287, 291 (2d Cir. 1989), or for the defendant’s
performance of a religious act, see Doe, 81 F.3d at 1211. Conversely, absolute
immunity extends to instances in which prosecutors act within their authority
to seek conditions. For example, a prosecutor retains immunity when he
requires a defendant to execute releases in favor of certain municipal entities,
see Schloss, 876 F.2d at 291, or make a payment to a civil party, see Cardone,
404 F. App’x at 543, in order to avoid indictment.
Here, the condition allegedly imposed by the DA Defendants is more akin
to the latter, permissible set of cases than the former. For that reason, the DA
Defendants retain absolute immunity, and Plaintiff’s remaining malicious
abuse of process claim is dismissed as to them. However, for the reasons
stated above, the Court is unable on this record to decide the issue whether the
NYPD Defendants enjoy qualified immunity. Therefore, Plaintiff’s remaining
malicious abuse of process claim as to the DA Defendants is dismissed, and as
to the NYPD Defendants is sustained. 13
In this regard, the NYPD Defendants argue that Plaintiff has abandoned two of his
claims with respect to them: "Plaintiff further failed to address defendant’s argument
that there was probable cause for his arrest and prosecution as well as defendant’s
qualified immunity argument." (1800 NYPD Reply 4). On the issue of qualified
immunity, the NYPD Defendants are wrong. Plaintiff addresses qualified immunity in
his Opposition. (1800 Pl. Opp. 8-9). However, these Defendants are correct that
Plaintiff did not specifically address their argument that "probable cause existed to
arrest plaintiff on January 25, 2012 based on his subsequent criminal conviction."
The Court Dismisses Plaintiff’s Claims in the 1800 Complaint
Against New York City
As stated above, municipal entities may be sued directly for
constitutional violations pursuant to § 1983. See Monell, 436 U.S. at 690. A
plaintiff may establish municipal liability under Monell in several ways,
including by presenting evidence of “[i] an express policy or custom, [ii] an
authorization of a policymaker of the unconstitutional practice, [iii] failure of
the municipality to train its employees, which exhibits a ‘deliberate
indifference’ to the rights of its citizens, or [iv] a practice of the municipal
employees that is ‘so permanent and well settled as to imply the constructive
acquiescence of senior policymaking officials.’” Biswas v. City of New York, 973
F. Supp. 2d 504, 536 (S.D.N.Y. 2013) (quoting Pangburn v. Culbertson, 200
F.3d 65, 71-72 (2d Cir. 1999)).
The 1800 Complaint includes broad, conclusory allegations that the City
is liable, pursuant to Monell, for all of the constitutional violations just
discussed. (1800 Compl. ¶¶ 66-67). However, the Complaint is bereft of any
factual allegations explaining how municipal liability is established, with two
exceptions: Plaintiff’s allegations that (i) the City and the Government
Defendants “have created a policy and custom of deliberately implementing
(1800 NYPD Br. 9). The Court has nonetheless deemed Plaintiff to have made such an
argument, on account of his pro se status, though it ultimately rules against him on
Further, the NYPD Defendants argue that "Plaintiff also states that he did not assert
claims against the City in this action." (1800 NYPD Reply 4). "Accordingly,” it is
argued, “insofar as plaintiff ever asserted these claims, he now abandons them." (Id.).
The Court disagrees. Plaintiff has made clear that he elected not to bring supplemental
state-law claims against the City, not that he has abandoned his federal claims against
it. (See 9621 Pl. Opp. 31).
unconstitutional sting operations to aid in the enforcement of nuisance
abatement proceedings,” and (ii) the Government Defendants “adopted a
practice of coercing individuals to engage in prostitution to facilitate the
investigation of suspected promoters.” (Id. at ¶ 67).
Beginning with the second alleged policy, Plaintiff’s Monell claim is
dismissed. The Court has already found that, even construing the pleadings
liberally, the Government Defendants’ alleged practice of “facilitating
prostitution” merely amounts to allegations that these Defendants met with
alleged prostitutes and used, or considered using, them as confidential
informants in their criminal investigations. Because the Court has already
determined that Plaintiff failed adequately to plead an underlying constitutional
violation involving the alleged coercion of individuals into prostitution,
Plaintiff’s Monell claim on this same theory fails. See Ferguson v. Cai, No. 11
Civ. 6181 (PAE), 2012 WL 2865474, at *6 (S.D.N.Y. July 12, 2012) (“Because
the Court has concluded that [the plaintiff’s] constitutional rights have not
been violated, his claim of municipal liability pursuant to Monell is, a fortiori,
In contrast, Plaintiff has sufficiently alleged a malicious abuse of process
violation. Therefore, his claims for municipal liability regarding the City’s use
of sting operations for nuisance proceedings cannot be dismissed for lack of an
underlying constitutional violation. However, this claim fails for a different
reason: the “official policy” allegations do not include, and cannot be amended
to include, factual detail. The 1800 Complaint offers nothing beyond the bald
assertion that the “[Government Defendants] have created a policy and custom
of deliberately implementing unconstitutional sting operations to aid in the
enforcement of nuisance abatement proceedings under N.Y.C. Administrative
Code § 7-703(a) and state law.” (1800 Compl. ¶ 67).
“To state there is a policy does not make it so. And while a plaintiff need
not assert the allegations in the initial complaint with a level of specificity only
made possible through discovery,” Betts v. Shearman, No. 12 Civ. 3195 (JPO),
2013 WL 311124, at *16 (S.D.N.Y. Jan. 24, 2013), Plaintiff here has not
adequately pleaded specific facts in support of his official policy Monell
allegations. And, as with certain of Plaintiff’s other claims, there is no sense
from the Plaintiff’s many submissions to the Court that such a claim can ever
adequately be pleaded.
The Court Dismisses Plaintiff’s Statutory Claims
In addition to bringing constitutional claims in the 1800 Complaint,
Plaintiff alleges violations of federal statutes governing access to wire, oral, and
electronic communications, namely the ECPA, the SCA, the RFPA, and the
DPPA. Because the Complaint fails to plead facts showing a violation of any of
these statutes, Plaintiff’s claims in Counts XIV, XV, XVI, XVII, XVIII, XIX, XX,
and XXI are dismissed. 14
Plaintiff brings all of his statutory claims against both the Government Defendants and
the Corporate Defendants. Because the Court lacks personal jurisdiction to consider
Plaintiff’s claims against Facebook, it arguably should not consider the merits of those
claims as to that defendant. See Cornwell v. Credit Suisse Grp., 666 F. Supp. 2d 381,
385-86 (S.D.N.Y. 2009) (“[A]bsent authority to adjudicate, the Court lacks a legal basis
to grant any relief, or even consider the action further.”); Norex Petroleum Ltd. v. Access
Indus., 540 F. Supp. 2d 438, 449 (S.D.N.Y. 2007) (dismissal for lack of jurisdiction
“moots, and thus terminates, all other pending motions”). However, the claims Plaintiff
The Electronic Communications Privacy Act and Stored
The privacy of stored Internet communications is governed by the SCA,
which was enacted as, and remains, part of the ECPA. The SCA mandates
different standards the Government must satisfy to compel disclosure of
different types of communications, see 18 U.S.C. § 2703, and imposes
restrictions on voluntary disclosure by providers, see 18 U.S.C. § 2702.
In brief, Plaintiff alleges that the Government Defendants unlawfully
accessed, intercepted, and altered his electronic communications in violation of
the ECPA and the SCA. (1800 Compl. ¶¶ 86, 88). In addition, Plaintiff alleges
that certain of the Corporate Defendants — including T-Mobile, Facebook,
Google, TWC, MCU, Capital One, and Chase — were complicit in this process
and knowingly divulged his records to the Government Defendants. (Id. at
¶¶ 87, 89).
Plaintiff’s threadbare allegations that the Government Defendants
violated the ECPA and SCA are not sufficiently detailed to survive a motion to
dismiss. Plaintiff paints in broad strokes — alleging that the Government
Defendants intercepted his communications “through” the Corporate
Defendants, and then altered some of those communications “without the
required warrant, notice with administrative subpoena or court order, or other
appropriate legal authority[.]” (1800 Compl. ¶¶ 86, 88). Plaintiff claims to have
raises against Facebook are identical to the claims he brings against other Corporate
Defendants. Thus, to promote efficiency, the Court will not differentiate when
addressing the merits of the Corporate Defendants’ arguments.
become aware of these violations in June 2013 “from federal discovery
disclosures,” presumably related to his criminal case. (Id. at ¶ 63).
Significantly, however, Plaintiff’s proffered evidence does not support his
allegations. Indeed, in the 1800 Complaint, rather than “plead[ing] factual
content that allows the court to draw the inference that the defendant is liable
for the misconduct alleged,” Plaintiff merely regurgitates the elements of each
statute. Iqbal, 556 U.S. at 678. Without more than these conclusory
allegations, Plaintiff’s claims against the Government Defendants cannot
survive a motion to dismiss. See Vega v. Hempstead Union Free Sch. Dist., 801
F.3d 72, 86 (2d Cir. 2015) (explaining that to survive a motion to dismiss, a
pleading must do more than assert “a formulaic recitation of the elements of a
cause of action” (quoting Twombly, 550 U.S. at 545)).
The Court observes that Plaintiff has not made a single factual allegation
regarding the Government Defendants’ failure to comply with ECPA’s statutory
notice requirements. (1800 Compl. ¶¶ 26, 88). Instead, Plaintiff states that he
“has not been provided with any court orders, subpoenas, warrants or notices
in relation to any of these disclosures.” (Id. at ¶ 26). Although Government
entities are subject to notice requirements under the ECPA and the SCA, those
obligations vary depending on the category of information being sought. See
Orin S. Kerr, A User’s Guide to the Stored Communications Act, and A
Legislator’s Guide to Amending It, 72 GEO. WASH. L. REV. 1208, 1222 (2004). In
addition, when notice is required, such notice may be delayed for significant
periods of time. See id. at 1233-34. Without additional factual allegations, the
Court cannot find that the Government Defendants were subject to — much
less in violation of — any notice requirements.
Similarly, Plaintiff’s claims against the Corporate Defendants lack
sufficient detail. Here again, Plaintiff merely recites the statutory language,
alleging that the service providers unlawfully disclosed his subscriber records
without the required legal process or notice. (1800 Compl. ¶¶ 26, 86, 89). The
Corporate Defendants argue, as suggested by this Court in its prior Order, that
the statutes contain defenses for releasing information pursuant to a court
order. (See T-Mobile Br. 9-10; TWC Br. 2-6). See Corley, 2015 WL 4164377, at
*7. However, upon closer review, the Court understands that Plaintiff does not
allege that the Corporate Defendants complied with a court order, but instead
brings his claims pursuant to Section 2702, which governs whether a provider
can disclose information to the Government voluntarily. (1800 Compl. ¶ 89). 15
For this reason, any good faith defense or court order compliance exception is
Under Section 2702, a provider “may divulge the contents of a
communication” to a law enforcement agency, if the contents “appear to pertain
to the commission of a crime.” 18 U.S.C. § 2702(b)(7). The problem for
Plaintiff is that he fails to make any factual allegations regarding any Corporate
In his Opposition, Plaintiff clarifies that “[i]t is possible that some Private-Defendants
fully or partially complied with the law,” presumably in response to appropriate legal
process. (1800 Pl. Opp. 19). The 1800 Complaint “only seeks to hold them liable for
[separate instance of] non-compliance.” (Id.). However, this clarification only serves to
highlight the fatal deficiencies in Plaintiff’s pleading. It is not enough to allege liability
in the event of non-compliance; Plaintiff is required to specify the non-compliance.
Defendant’s violation of this provision. Instead, Plaintiff summarily asserts
that all of the Corporate Defendants voluntarily disclosed his information to
law enforcement, during the period of time that he was under investigation by
those agencies. (1800 Compl. ¶¶ 29, 87, 89). Because the Complaint does not
sufficiently allege how the Corporate Defendants’ violated the ECPA and SCA in
the course of any disclosures they may have made, the claims against them are
The Right to Financial Privacy Act
Next, Plaintiff argues that the DA Defendants, with the assistance of
Corporate Defendants MCU, Capital One, and Chase (collectively, the “RFPA
Defendants”), violated his right to privacy under the RFPA. (1800 Compl.
¶¶ 90-91). The RFPA is intended to protect the privacy of customer’s financial
records held by banks and other financial institutions. To that end, the statute
curbs access to financial records by government entities, while protecting the
Government’s interest in obtaining records relevant to a legitimate law
enforcement investigation. See 12 U.S.C. § 3402.
Similar to his ECPA claims, Plaintiff alleges that the DA Defendants
improperly accessed his financial records without proper legal process, and
that the RFPA Defendants improperly disclosed those records to the City of
Corporate Defendants MCU and Capital One separately argue that they are not subject
to the SCA, which governs entities that provide an “electronic communication service”
or “remote computing service” to the public, because they are merely financial
institutions. (See MCU Br. 3-4; Capital One Br. 6-8). See generally 18 U.S.C. 2702(a).
The Second Circuit has not yet construed these terms, although at least one district
court in this Circuit has done so in a manner that supports these arguments. See In re
JetBlue Airways Corp. Privacy Litig., 379 F. Supp. 2d 299, 307 (E.D.N.Y. 2005). Given
that these claims are dismissed on other grounds, the Court does not resolve this issue.
New York. (1800 Compl. ¶¶ 90-91). As a threshold matter, the RFPA
Defendants argue that Plaintiff’s RFPA claim fails because the statute does not
apply to state authorities. (See Chase Br. 9-10; Capital One Br. 9-10). “[T]he
RFPA only governs and protects against the disclosure of financial records to
the federal government.” Barroga-Hayes v. Susan D. Settenbrino, P.C., No. 10
Civ. 5298, 2012 WL 1118194 (RJD), at *4 (E.D.N.Y. Mar. 30, 2012) (emphasis
in original). In contrast, Plaintiff alleges that his records were disclosed to the
City of New York. (1800 Compl. ¶ 91).
In his Opposition, Plaintiff “concedes that the RFPA allegations are
deficient because the Complaint is silent regarding a federal authority” (1800
Pl. Opp. 21), but makes additional factual allegations that this Court will
consider, see Walker, 717 F.3d at 122 n.1. Plaintiff alleges that at least one
NYPD Detective had been deputized as a Task Force Officer by the FBI, “giving
him authority to prosecute federally.” (1800 Pl. Opp. 21). As proof of his
claim, Plaintiff includes the detective’s NYPD and FBI email addresses, as
provided to Plaintiff through FOIA disclosures. (Id.). Given these additional
assertions, the Court finds that Plaintiff has plausibly pleaded that his
financial records were accessed by the federal government. Cf. Young v. U.S.
Dep’t of Justice, No. 87 Civ. 8307 (JFK), 1988 WL 131302, at *3 (S.D.N.Y.
Nov. 28, 1988) (finding that an Assistant United States Attorney deputized to
obtain records for the Bermudan government did not implicate the RFPA), aff’d
and modified on other grounds by 882 F.2d 633 (2d Cir. 1989).
Despite having cured this defect in his pleadings, Plaintiff still does not
state a claim under the RFPA. Again, the Court’s analysis is similar to its
exploration of Plaintiff’s ECPA and SCA claims. Again, Plaintiff’s claims consist
exclusively of conclusory statements of legal standards with no substantiating
factual allegations. For instance, Plaintiff alleges that the Government
Defendants “knowingly accessed and obtained copies of the information
contained in the financial records of [Plaintiff] from financial institutions,”
(1800 Compl. ¶ 90), but provides no facts about this allegedly unlawful access.
This recitation of statutory elements cannot, and does not, suffice to plead a
The Driver’s Privacy Protection Act
Plaintiff brings his final statutory claim under the DPPA, 18 U.S.C.
§§ 2721-2725. The DPAA generally restricts any state motor vehicle
department (“DMV”) from disclosing personal information contained in its
records. See Reno v. Condon, 528 U.S. 141, 143 (2000). “Similarly, private
citizens or entities ordinarily may not obtain, disclose, or resell personal
information unless permitted by statute.” Gordon v. Softech Int’l, Inc., 726 F.3d
42, 45 (2d Cir. 2013), as corrected (Aug. 1, 2013) (citing 18 U.S.C. §§ 2722(a),
2721(c)). 17 “To establish a claim under DPPA, the plaintiff must show that the
defendants caused a DMV search to be made, and that the search was not
Defendant Capital One argues that, as a financial institution, it does not fall within the
reach of the DPPA because it is not “a State department of motor vehicles, [or] any
officer, employee, or contractor thereof[.]” (Capital One Br. 11). However, as Plaintiff
notes, there are limited circumstances in which individuals and private entities may
also be held liable for disclosures that violate the DPPA. See Fontanez v. Skepple, 563
F. App’x 847, 849 (2d Cir. 2014) (summary order). (See Pl. Opp. 21-22).
permitted by any exception to the DPPA.” Figueroa v. Taylor, No. 06 Civ. 3676
(PAC) (KNF), 2006 WL 3022966, at *4 (S.D.N.Y. Oct. 23, 2006) (internal
citations and quotations omitted).
Plaintiff alleges that the Government Defendants made false
representations regarding their legal authority to obtain Plaintiff’s records from
several of the Corporate Defendants, including Con Edison, MCU, Capital One,
and Chase (collectively, the “DPPA Defendants”). (1800 Compl. ¶ 92). In turn,
the DPPA Defendants “disclosed copies of Plaintiff’s New York State Driver’s
Identification card, photograph and social security number to agents of the City
of New York.” (Id. at ¶ 93).
Plaintiff’s DPPA claim suffers from the same fundamental pleading
deficiencies as his other statutory claims: It recites standards with no
supporting factual allegations. Plaintiff has not pleaded that the Government
or Corporate Defendants caused any DMV search to be made. And there are
numerous alternative plausible explanations for the disclosures. If the records
were obtained through other means — for example, if Plaintiff provided
identification to Capital One when applying for a bank account — any
subsequent disclosure would fall outside of the purview of the DPPA. See
Fontanez v. Skepple, 563 F. App’x 847, 849 (2d Cir. 2014) (summary order).
While the mere existence of alternative explanations does not generally doom a
complaint, to survive dismissal, Plaintiff must allege, at minimum, specific
facts as to how the disclosure or disclosures took place. He has not done so
The Court Dismisses Plaintiff’s State-Law Claims
In addition to his federal claims, Plaintiff brings three state-law claims in
the 1800 Complaint: negligent infliction of emotional distress, gross negligence,
and fraud. A court may decline to exercise supplemental jurisdiction if “the
district court has dismissed all claims over which it has original jurisdiction.”
Kroshnyi v. U.S. Pack Courier Servs., Inc., 771 F.3d 93, 102 (2d Cir. 2014)
(citing 28 U.S.C. § 1367(a)). Here, the Court has not dismissed all of Plaintiff’s
federal claims. Several of Plaintiff’s unlawful search and malicious abuse of
process claims remain. For that reason, the Court exercises its discretion to
retain supplemental jurisdiction, and considers the merits of Plaintiff’s claims.
Plaintiff’s Claim for Negligent Infliction of Emotional
Plaintiff’s first state-law claim, against all Defendants, is for negligent
infliction of emotional distress. (1800 Compl. ¶ 95). A claim for negligent
infliction of emotional distress under New York law requires “showing ‘a breach
of a duty of care resulting directly in emotional harm ... even though no
physical injury occurred,’ as long as ‘the mental injury [is] a direct, rather than
a consequential, result of the breach, and the claim ... possess[es] some
guarantee of genuineness.” Mortimer v. City of New York, No. 15 Civ. 7186
(KPF), 2018 WL 1605982, at *27 (S.D.N.Y. Mar. 29, 2018) (alterations in
original) (quoting Taggart v. Costabile, 14 N.Y.S.3d 388, 397 (2d Dep’t 2015)).
Nonetheless, “New York courts have expressed a ‘longstanding reluctance to
recognize causes of action for negligent infliction of emotional distress,
especially in cases where the plaintiff suffered no independent physical or
economic injury.’” Colo. Capital Invs., Inc. v. Owens, 304 F. App’x 906, 908 (2d
Cir. 2008) (summary order) (quoting Broadnax v. Gonzalez, 2 N.Y.3d 148, 153
In a complaint that is at times light on factual allegations, Plaintiff’s
allegations regarding negligent infliction of emotional distress are the lightest.
In total, the 1800 Complaint claim alleges only the following:
The defendants’ intentional and grossly negligent acts
and omissions collectively caused the Plaintiff to suffer
emotional distress from the false arrest, public
disclosure of personal matters, searches of the body,
home and office, over one year of oppressive
confinement on Rikers Island, loss of employment,
public scrutiny in the media and loss of consortium.
(1800 Compl. ¶ 64). In his Opposition, Plaintiff provides additional
information, but only with respect to damages, clarifying that “the acts of
Defendants caused the Plaintiff to suffer over a year incarcerated which
threatened his physical safety.” (1800 Pl. Opp. 22).
Plaintiff’s claim falls far short of the standard for pleading negligent
infliction of emotional distress. Among other things, Plaintiff does not indicate
what “intentional and grossly negligent acts” form the basis of this claim. Nor
does Plaintiff allege any special duty owed to him by any of the defendants, as
required under New York law. See Mortise v. United States, 102 F.3d 693, 696
(2d Cir. 1996) (“The duty in such cases must be specific to the plaintiff, and not
some amorphous, free-floating duty to society.”).
Even if the Court were to consider factual allegations made elsewhere in
the Complaint that might tangentially be related to this claim, Plaintiff’s claim
would still fail. The conduct that Plaintiff ascribes to each of the 1800
Defendants is “intentional and deliberate and allegedly in their nature
offensive” — and therefore “outside the ambit of actionable negligence.” Jones
v. Trane, 591 N.Y.S.2d 927, 930 (Sup. Ct. Onondaga Cty. 1992). Like its sister
courts in this District, “[t]his Court is mindful that “New York Courts have
rejected uniformly such attempts to transmogrify intentional torts into
‘negligence.’” Wahlstrom v. Metro-N. Commuter R. Co., 89 F. Supp. 2d 506, 532
(S.D.N.Y. 2000) (internal citations and quotations omitted). It finds here
similarly that Plaintiff’s claim for negligent infliction of emotional distress must
Plaintiff’s Claim for Gross Negligence Fails
Plaintiff also brings a claim for gross negligence, based on two incidents:
(i) the allegedly unlawful search of his office; and (ii) the disclosure his personal
information to Government Defendants. (1800 Compl. ¶¶ 96-97). As to the
first claim, Plaintiff alleges that the Con Edison Defendants “act[ed] negligently
as vigilantes,” and owed Plaintiff “the duty of not unnecessarily participating in
a warrantless arrest[.]” (Id. at ¶ 96). In his second claim, Plaintiff alleges that
Corporate Defendants T-Mobile, Facebook, Google, TWC, MCU, Capital One,
and Chase (collectively, the “Gross Negligence Defendants”) disclosed his
personal information to the Government Defendants, despite owing him “the
duty of protecting personal information, communications and financial records
from disclosure to unauthorized third-parties.” (Id. at ¶ 97). 18
As discussed by Defendants, gross negligence “differs in kind as well as
degree from ordinary negligence.” Kinsey v. Cendant Corp., No. 04 Civ. 582
(RWS), 2005 WL 1907678, at *7 (S.D.N.Y. Aug. 10, 2005) (quoting Sutton Park
Dev. Corp. Trading Co. Inc. v. Guerin & Guerin Agency, Inc., 745 N.Y.S.2d 622,
624 (3d Dep’t 2002)). To state a claim for gross negligence, a plaintiff must
allege conduct by a defendant that “‘smacks of intentional wrongdoing’” or
“evinces a reckless disregard for the rights of others.” Purchase Partners, LLC
v. Carver Fed. Sav. Bank, 914 F. Supp. 2d 480, 497 (S.D.N.Y. 2012)
(quoting Farash v. Cont'l Airlines, Inc., 574 F. Supp. 2d 356, 367-68 (S.D.N.Y.
2008)). As such, “a party is grossly negligent when it fails to exercise even
slight care or slight diligence.” Goldstein v. Carnell Assocs., Inc., 906 N.Y.S.2d
905, 905-06 (2d Dep’t 2010) (internal quotations omitted).
Neither instance identified by Plaintiff — the unlawful office search or the
disclosure of private information to the Government — rises to the level of gross
negligence, even with the inclusion of Plaintiff’s allegations to the effect that the
Gross Negligence Defendants “not only acted carelessly in making a mistake,
In their motions to dismiss, these Defendants noted that Plaintiff brought a claim for
gross negligence, as opposed to ordinary negligence. (See, e.g., Def. Chase Br. 14-15).
In response, Plaintiff requested leave to amend the 1800 Complaint to include a claim
for general negligence, while maintaining his gross negligence claim. (1800 Pl Opp.
¶¶ 22-23). However, Plaintiff may not recover under general negligence principles
because the damages sought arise out of Plaintiff’s arrest and detention. See Croft v.
Greenhope Servs. for Women, Inc., No. 13 Civ. 2996 (DLC), 2013 WL 6642677, at *7
(S.D.N.Y. Dec. 17, 2013). Instead, Plaintiff “must proceed by way of the traditional
remedies of false arrest and imprisonment and malicious prosecution.” Vanderwoude v.
City of New York, No. 12 Civ. 9046 (KPF), 2014 WL 2592457, at *19 (S.D.N.Y. June 10,
2014) (internal citations and quotations omitted).
but that [they were] so extremely careless that it was equivalent to
recklessness.” Travelers Indem. Co. of Conn. v. Losco Grp., Inc., 204 F. Supp.
2d 639, 644 (S.D.N.Y. 2002). As previously discussed, and related to his
Fourth Amendment claims, Plaintiff has not sufficiently alleged that he had a
reasonable expectation of privacy in his workplace that would render any
warrantless search unlawful. Therefore, any alleged participation or assistance
by his employer would not evince a reckless disregard for his rights.
Similarly, the Court cannot sustain Plaintiff’s second variation of his
claim, in which he alleges that disclosures on the part of any of the Gross
Negligence Defendants were grossly negligent. The Court has already
determined that Plaintiff has not adequately alleged that any of these
defendants disclosed his personal information in violation of any constitutional
or statutory rights. As a result, the Court cannot find that any of the alleged
disclosures were “so extremely careless that [they were] equivalent to
recklessness.” Travelers, 204 F. Supp. 2d at 644.
Plaintiff’s Claim for Fraud Fails
As his final state-law claim in the 1800 Complaint, Plaintiff alleges that
the Government Defendants aided and abetted a fraud perpetrated by
Defendant Backpage.com. (1800 Compl. ¶¶ 65, 98-99; 1800 Pl. Opp. 23). The
Court finds that Plaintiff’s allegations of the underlying fraud are both
conclusory and not plausibly pleaded; as a result, it does not reach the issue of
whether the Government Defendants aided and abetted Backpage.com in
perpetrating a fraud.
To prove fraud in New York, a plaintiff must allege, “[i] that the defendant
made a representation, [ii] as to a material fact, [iii] which was false, [iv] and
known to be false by the defendant, [v] that the representation was made for
the purpose of inducing the other party to rely upon it, [vi] that the other party
rightfully did so rely, [vii] in ignorance of its falsity [viii] to his injury.” Brown v.
Lockwood, 432 N.Y.S.2d 186, 195 (2d Dep’t 1980). In addition, Federal Rule of
Civil Procedure 9(b) requires that “[i]n alleging fraud or mistake, a party must
state with particularity the circumstances constituting fraud or mistake.” Fed.
R. Civ. P. 9(b). Specifically, Rule 9(b) requires that a complaint “[i] specify the
statements that the plaintiff contends were fraudulent, [ii] identify the speaker,
[iii] state where and when the statements were made, and [iv] explain why the
statements were fraudulent.” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d
87, 99 (2d Cir. 2007) (citation omitted). “Allegations that are conclusory or
unsupported by factual assertions are insufficient.” Id.
Plaintiff alleges here that Defendant Backpage.com committed the
underlying fraud through their Terms of Service:
Defendants Backpage committed common law fraud by
omitting from their “Terms of Service” that their online
advertisement service is a covert tool for law
enforcement, giving them unrestricted access to
subscriber information and financial records without
any legal authority. Plaintiff reasonably believed that
all communications and transactions with the online
service backpage.com would be unaccessible to a thirdparty.
(1800 Compl. ¶ 65). The Government Defendants are alleged to have aided and
abetted this fraud by “inducing” Backpage.com to grant access to its service
without proper legal authorization. (Id. at ¶ 99).
Particularly given the dictates of Rule 9(b), Plaintiff’s conclusory
allegations of fraud are unsupported by any facts and inadequate to state a
claim. The 1800 Complaint contains no factual allegations regarding the use of
Backpage.com as a “covert tool for law enforcement,” or its alleged use or
misuse by the Government Defendants, as would be necessary to state a claim
for fraud. Indeed, there is nothing to suggest that the website is anything other
than a legitimate, third-party site. Moreover, the notion that Backpage.com
was obligated to advise those patrons who might be interested in using its
services to engage in criminal conduct that it would comply with law
enforcement inquiries into such conduct, is wholly implausible. The claim is
The Court Dismisses the 9621 Complaint in Full
The Court now turns to Plaintiff’s 9621 action. Sharing a common
factual nucleus with the 1800 action, the 9621 Complaint focuses on the
conduct of those involved in Plaintiff’s state prosecution from its inception until
the case was turned over to the federal prosecutors. As set forth in the
remainder of this section, and unlike its sister case, none of the claims in the
9621 Complaint survives the motions to dismiss.
Plaintiff’s Speedy Trial, Fair Trial, and Selective Prosecution
Claims Are Barred by Heck
In Count III of the 9621 Complaint, Plaintiff brings a speedy trial claim
under 42 U.S.C. § 1983. (9621 Compl. ¶¶ 29-35, 62). For the same reasons
the Court has previously articulated in reference to Plaintiff’s 1800 Complaint,
the claim must be dismissed because it seeks to call into question the validity
of his federal conviction, in contravention of Heck, see 512 U.S. at 477. The
Court adopts its prior analysis and declines to address the claim in further
In addition, to the extent Plaintiff’s obstruction of justice claim (Count IV)
is construed as a violation of his Sixth Amendment right to a fair trial, it is
similarly barred by Heck. See Barnes v. City of New York, No. 13 Civ. 7283
(GBD) (JLC), 2015 WL 4076007, at *16 (S.D.N.Y. July 2, 2015) (“Where the
plaintiff’s underlying conviction has not been so invalidated, courts routinely
dismiss Section 1983 claims for, inter alia, malicious prosecution, conspiracy,
and deprivation of the right to a fair trial pursuant to Heck.”), report and
recommendation adopted, No. 13 Civ. 7283 (GBD) (JLC), 2015 WL 5052508
(S.D.N.Y. Aug. 26, 2015). 19
Per the 9621 Complaint, Count IV, entitled “Obstruction of Justice,” is a claim for
violations of Plaintiff’s “fifth and sixth amendment rights to due process and a fair trial.”
(9621 Compl. ¶ 63).
Finally, to the extent Plaintiff’s allegations of violations of his Fourteenth
Amendment right to equal protection are construed as selective prosecution
claims (see Count V), those claims are also barred by Heck. Cf. Leather v.
Eyck, 180 F.3d 420, 423 (2d Cir. 1999) (finding that Heck does not bar a
§ 1983 selective prosecution claim, despite “reasoning that the claim’s success
would necessarily imply the invalidity of [the plaintiff’s] criminal conviction,”
because the plaintiff was never in custody (internal quotations and citations
omitted)). 20 Plaintiff’s selective prosecution claim here, if meritorious, would
necessarily mean that his conviction was unlawful. Cf. United States v.
Mangano, No. 16 Cr. 540 (JMA), 2018 WL 851860, at *9 (E.D.N.Y. Feb. 9, 2018)
(observing that criminal defendants asserting the defense of selective
prosecution were seeking dismissal of the indictment); see also Omegbu v.
Milwaukee Cty., 326 F. App’x 940, 942-43 (7th Cir. 2009) (summary order) (“A
decision here that [the defendant] was selectively prosecuted would mean that
Count V of the Complaint, entitled “Equal Protection,” alleges violations of the Equal
Protection Clause of the Fourteenth Amendment. (9621 Compl. ¶ 64). Plaintiff alleges
that the DA Defendants “maintained a policy of referring Black defendants for federal
prosecution, while defendants of other races faced less severe consequence[.]” (Id.).
Given these allegations, the Court construes Plaintiff’s equal protection claim to be, in
part, a claim of selective prosecution. See Jones v. J.C. Penney’s Dep’t Stores, Inc.,
No. 03 Civ. 920A, 2007 WL 1577758, at *8 (W.D.N.Y. May 31, 2007), aff’d sub nom.
Jones v. J.C. Penny’s Dep’t Stores Inc., 317 F. App’x 71 (2d Cir. 2009) (summary order)
(construing pro se plaintiff’s equal protection claim as a selective prosecution claim). To
the extent Count V is construed as a claim for malicious prosecution, it would also be
barred for lack of a favorable termination. See Murphy v. Lynn, 118 F.3d 938, 947 (2d
Cir. 1997). Furthermore, in his Opposition, Plaintiff clarifies that Count V “is also a
‘substantive due process’ claim because it also deals with ‘Plaintiff’s vindictive federal
prosecution.’” (Pl. Opp. 19). The Court addresses Plaintiff’s due process claims in the
9621 Complaint infra.
his conviction was unlawful,” thereby barring his § 1983 suit). For these
reasons, the Court dismisses those claims. 21
Plaintiff’s Privacy Claim Fails
In Count I of the 9621 Complaint, Plaintiff asserts a violation of his “first
and fourth amendment rights to privacy.” (9621 Compl. ¶ 60). In this regard,
Plaintiff alleges that Justice Wittner and the DA Defendants “established a
quasi-grand jury to issue subpoenas, court orders, etc.; with the intent to
illegally obtain access to Plaintiff’s personal electronic communications, bank
records, phone records and conversations, etc.” (Id. at ¶ 17).
The DA Defendants argue that “Plaintiff fails to allege what is a ‘Quasi
Grand Jury,’ the difference between a Grand Jury and a ‘Quasi Grand Jury,’
how the ‘Quasi Grand Jury’ violated the laws of New York governing Grand
Juries, and what was the ‘personal information’ that he had a reasonable
expectation of privacy in.” (9621 DA Br. 8). The Court agrees that allegations
detailing the existence and characteristics of Quasi Grand Juries, and detailing
the precise information injuriously disclosed, would be necessary for Plaintiff’s
claim to survive, and are absent here. More pointedly, nothing in Plaintiff’s
Complaint or Opposition suggests that he could advance plausible, nonconclusory allegations that Justice Wittner and the DA Defendants concocted a
Plaintiff’s selective prosecution claim, even if not barred by Heck, additionally fails
because prosecutorial immunity shields the DA Defendants. See Bernard v. County of
Suffolk, 356 F.3d 495 (2d Cir. 2004) (noting that absolute immunity shields prosecutors
from suit pursuant to § 1983 for their alleged malicious or selective prosecution); see
also Klein v. Beltempo, No. 15 Civ. 9093 (NSR), 2018 WL 4284317, at *6 (S.D.N.Y.
Sept. 7, 2018) (“The initiation and pursuit of a prosecution is not investigative and,
regardless of any alleged illegality, is protected by absolute immunity.”).
faux grand jury solely, or even principally, to obtain information about Plaintiff
illegally; the progress and resolution of his prosecutions suggests that the
necessary probable cause for such requests was always present. Once again,
Plaintiff has failed to sufficiently allege a claim, and Count I of the 9621
Complaint is dismissed.
Plaintiff’s Substantive Due Process Claims Fail
At his request, the Court construes Plaintiff’s claims for outrageous
government conduct, obstruction of justice, and equal protection as
substantive due process claims. (See 9621 Pl. Opp. 19 (“Treatment of Count II
(Outrageous Government Conduct) as a ‘substantive due process’ claim is most
appropriate[.]”); 9621 Compl. ¶ 63 (pleading obstruction of justice claim as a
violation of Plaintiff’s right to due process); 9621 Pl. Opp. 19 (“With respect to
Count V (Equal Protection), this claim is obviously an ‘equal protection’ claim
that is clearly alleged. However it is also a ‘substantive due process’ claim
because it also deals with ‘Plaintiff’s vindictive federal prosecution[.]’”)). These
allegations, taken together, form the heart of the 9621 Complaint.
To review, “[t]o establish a violation of substantive due process rights, a
plaintiff must demonstrate that the state action was so egregious, so
outrageous, that it may fairly be said to shock the contemporary conscience.
See Okin v. Vill. of Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 431 (2d Cir.
2009) (internal citations and quotations omitted). Plaintiff’s substantive due
process allegations begin with a regurgitation of his claims in the 1800
Complaint that the DA Defendants improperly used informants in the course of
undercover operations. (9621 Compl. ¶¶ 18-24). In point of fact, Plaintiff’s
opposition papers in both cases are identical on this point. (Compare 1800 Pl.
Opp. 13-17, with 9621 Pl. Opp. 20-23). As discussed above, these allegations,
even construed liberally, do not shock the contemporary conscience.
Plaintiff offers one slight tweak to his factual allegations in the 9621
Complaint: He alleges that Justice Wittner “induced [an alleged confidential
informant who had been apprehended on prostitution charges] to engage in
prostitution,” by threatening her with prosecution, an unfavorable disposition,
or offering her something of value. (9621 Compl. ¶ 18). While these allegations
disturb the Court, they are conclusorily, and thus insufficiently, pleaded. The
9621 Complaint includes 11 paragraphs related to the conduct of the DA
Defendants, but only a few assertions regarding Justice Wittner’s involvement.
(Id. at ¶¶ 18-28). Additional factual allegations would be needed to “nudge
[Plaintiff’s] claims across the line from conceivable to plausible.” In re Elevator
Antitrust Litig., 502 F.3d at 50. On the record before it, which includes the
factual arguments made by Plaintiff in opposition to these motions, the Court
finds that Plaintiff has not alleged, and cannot plausibly allege, that Justice
Wittner and the DA Defendants compelled a prostitute to engage in
prostitution — as distinguished from engaging in sting operations in which she
may have held herself out as a prostitute. This claim is therefore dismissed.
Next, Plaintiff alleges that the DA Defendants and Justice Wittner
solicited the USAO to prosecute him. (9621 Compl. ¶¶ 36-49). And when the
USAO declined to prosecute, ostensibly for “lack of interest” (id. at ¶ 40),
Plaintiff’s defense counsel, Glenn Hardy, is alleged to have hired private
investigator Michael Barry “to publicize Plaintiff’s case, with the intent of
enticing the U.S. Attorney to take the case” (id. at ¶ 41). In his Opposition,
Plaintiff also claims that “[t]he goal was to embarrass the Plaintiff in the media
hoping that he would quickly plead guilty to get the matter over with.” (9621
Pl. Opp. 24). Barry visited Plaintiff while he was incarcerated, but then,
allegedly, sold Plaintiff’s story to the media. (9621 Compl. ¶¶ 42-43). Shortly
thereafter, it is alleged, the USAO expressed an interest in Plaintiff’s case, and
the DA Defendants arranged to transfer prosecution. (Id. at ¶ 46).
Plaintiff’s substantive due process allegations related to this sequence of
events fail for a number of reasons. To begin, the allegations do not withstand
scrutiny and implicate, even more than some of Plaintiff’s other allegations, the
plausibility inquiry that inheres in Rule 12(b)(6). As clarified by Defendants,
and as not disputed by Plaintiff, Hardy was assigned to Corley’s case through
the New York County Assigned Counsel Defender Plan. (See Hardy Br. 3).
Barry, in turn, was an investigator assigned through the same program to
assist Hardy in preparing Plaintiff’s defense. (Gotlin Decl. ¶ 3). Plaintiff’s
conclusory allegations that his defense team acted at the behest of Justice
Wittner and the DA Defendants are neither well pleaded nor tethered to logic
and common sense. Among other things, Plaintiff is unable to explain why
Hardy would have any interest in securing Plaintiff’s prompt guilty plea or
piquing the interest of the USAO; indeed, the two goals are mutually
contradictory. Plaintiff is similarly unable to tie Barry, whose job required him
to visit Plaintiff in jail, to the publication of an article about Plaintiff’s case.
Without more, Plaintiff’s attempt to link together — and ascribe
constitutionally violative motives to — a multitude of seemingly unrelated
occurrences fails. See McNaughton v. de Blasio, No. 14 Civ. 221 (KPF), 2015
WL 468890 (S.D.N.Y. Feb. 4, 2015) (dismissing case for failure to plead
plausible allegations), aff’d, 644 F. App’x 32 (2d Cir. 2016) (summary order).
In any event, Hardy and Barry were not state actors, as required under
§ 1983. See Krug v. McNally, 488 F. Supp. 2d 198, 200 (N.D.N.Y. 2007)
(“[D]efense attorneys — even if court appointed or public defenders — do not
act under color of State law when performing traditional functions of counsel.”),
aff’d, 368 F. App’x 269 (2d Cir. 2010) (summary order); see also Polk Cty. v.
Dodson, 454 U.S. 312, 318 (1981) (“[A] lawyer representing a client is not, by
virtue of being an officer of the court, a state actor ‘under color of state law’
within the meaning of § 1983.”). As previously discussed, Hardy “is a private
attorney who was assigned to represent Plaintiff via the New York County
Assigned Counsel Defender Plan” (9621 Hardy Br. 8), and Barry is a private
investigator who was assigned under the same plan (9621 Barry Br. 14).
Nor has Plaintiff sufficiently alleged “such a ‘close nexus between the
State and the challenged action’ that seemingly private behavior ‘may be fairly
treated as that of the State itself.’” Abdullahi, 562 F.3d at 188 (quoting
Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295
(2001)). Instead, Plaintiff merely alleges that, “motivated by [the DA
Defendants] and Justice Wittner, Mr. Hardy hired private investigator Michael
J. Barry[.]” (9621 Compl. ¶ 41). Any further allegations regarding the DA
Defendants’ or Justice Wittner’s roles in this process are fairly benign, and
plainly insufficient to plead a conspiracy to violate Plaintiff’s constitutional
rights. (See, e.g., id. at ¶ 46 (alleging that Judge Wittner “discussed the
logistics of transferring evidence”), id. at ¶¶ 47-48 (alleging that the DA
Defendants offered Plaintiff a plea deal)).
Finally, Plaintiff alleges that the DA Defendants maintained a racist
policy of prosecution, which policy he claims to be the reason for his arrest and
imprisonment. (9621 Compl. ¶¶ 54-55). In his Opposition, Plaintiff clarifies
that this set of facts also alleges “a ‘substantive due process’ claim because it
deals with ‘Plaintiff’s vindictive federal prosecution.’” (9621 Pl. Opp. 19).
Plaintiff is correct that a claim of vindictive prosecution implicates due process
concerns. See Class v. United States, 138 S. Ct. 798, 810 (2018). However,
this variant of his due process claim fails for three reasons. 22
First, Plaintiff has failed to plead the elements of a vindictive prosecution
claim. In the criminal context, the Second Circuit has explained that a
prosecution brought to “‘penaliz[e] those who choose to exercise’ constitutional
rights[ ] ‘would be patently unconstitutional.’” United States v. Sanders, 211
As a threshold matter, it is unclear whether vindictive prosecution is a cognizable cause
of action under § 1983. See Willis v. Rochester Police Dep’t, No. 15 Civ. 6284 (FPG),
2018 WL 4637378, at *7 n.12 (W.D.N.Y. Sept. 27, 2018). While some courts “faced with
such § 1983 claims have … recognized it as a valid cause of action,” id., other have
found that “[a]t best, [a vindictive prosecution] claim may be analogized instead to a
malicious prosecution claim,” id. As previously discussed, any claim for malicious
prosecution would be barred for lack of a favorable termination. See Heck v. Humphrey,
512 U.S. 477, 484-86 (1994). Given its disposition of the claim, the Court need not
resolve this issue.
F.3d 711, 716 (2d Cir. 2000) (quoting North Carolina v. Pearce, 395 U.S. 711,
724 (1969)). In that regard, the requisite vindictiveness requires a
demonstration “that the prosecutor’s charging decision was a ‘direct and
unjustifiable penalty’ that resulted ‘solely from the defendant’s exercise of a
protected legal right.’” Id. at 716-17. Plaintiff asserts that his prosecution
“was motivated by Plaintiff being a Black ‘pimp’ that associated with White and
Caucasian prostitutes.” (9621 Compl. ¶ 58). Although the Court is disturbed
by the allegations, Plaintiff does not claim that he was prosecuted for the
exercise of some legal right. See United States v. Bufalino, 518 F. Supp. 1190,
1195 (S.D.N.Y. 1981) (“There simply is no showing that he has exercised any
right prior to the superseding indictment which could have triggered a
vindictive response from the government.”). 23
Second, in order for Plaintiff to prevail on his claim, he would have to
prove that he was singled out for prosecution simply because of his race. Proof
of such facts would imply the invalidity of Plaintiff’s criminal conviction.
Accordingly, his claim is barred by Heck. See Sanders v. United States, No. 01
Civ. 5447 (JS) (WDW), 2005 WL 8156914, at *4 (E.D.N.Y. Mar. 29, 2005)
(finding vindictive prosecution claim to be barred by Heck).
Third, and finally, the DA Defendants would be entitled to absolute
immunity for this claim. See Giraldo v. Kessler, 694 F.3d 161, 165 (2d Cir.
2012) (“Prosecutorial immunity from § 1983 liability is broadly defined” and
The 9621 Complaint makes no reference to requests for Plaintiff’s assistance in
nuisance abatement proceedings, as does the 1800 Complaint.
extends to decisions regarding “whether and when to prosecute[.]” (citing
Imbler, 424 U.S. at 430)). Count V of the 9621 Complaint is therefore
The Majority of Plaintiff’s Claims Against Judge Wittner Are
Barred by Judicial Immunity
Apart from failing on the merits, the majority of Plaintiff’s allegations
against Judge Wittner are barred by judicial immunity. “It is well settled that
judges generally have absolute immunity from suits for money damages for
their judicial action.” Shtrauch v. Dowd, 651 F. App’x 72, 73 (2d Cir. 2016)
(summary order). All of Plaintiff’s allegations — including his claims that
Judge Wittner unlawfully established a quasi-grand jury, circumvented
procedures to have Plaintiff’s case assigned to her, and transferred the case to
the USAO — relate to “acts arising out of, or related to, [his] individual case
before [Judge Wittner].” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009).
Therefore, Judge Wittner is afforded absolute immunity. See id. Further,
Plaintiff’s allegations that Judge Wittner acted maliciously or even in excess of
her jurisdiction cannot overcome immunity. See Tucker v. Outwater, 118 F.3d
930, 933 (2d Cir. 1997).
To the extent Judge Wittner is not completely shielded by judicial
immunity, it is due to the fact that Plaintiff has strategically pleaded that
Judge Wittner was involved in law enforcement undercover operations. (9621
Compl. ¶ 18). “At the margins, it can be difficult to distinguish between those
actions that are judicial, and which therefore receive immunity, and those that
happen to have been performed by judges, but are administrative, legislative,
or executive in nature.” Huminski v. Corsones, 396 F.3d 53, 75 (2d Cir. 2005).
Here, engaging with law enforcement to work with informants, is likely not an
action that is judicial in nature. Regardless, the substantive due process claim
that Plaintiff brought based on those allegations has already failed on the
merits, as discussed above.
Plaintiff’s Claims Against New York City Fail for Lack of an
Underlying Constitutional Violation
Plaintiff has failed to demonstrate the existence of an underlying
constitutional violation in the 9621 Complaint, thereby precluding a Monell
claim against the City. See Bobolakis v. DiPietrantonio, 523 F. App’x 85, 87 (2d
Cir. 2013) (summary order) (affirming dismissal of Monell claims where plaintiff
“suffered no violation of his constitutional rights [and as such] there is no basis
for imposition of liability on the Town” (citing Segal v. City of New York, 459
F.3d 207, 219 (2d Cir. 2006))). What is more, with the exception of Plaintiff’s
claim for vindictive prosecution, the Complaint is devoid of allegations of any
policy, custom, or practice on the part of the City. Therefore, even assuming
for the sake of argument that the absence of an underlying constitutional
violation was not fatal to Plaintiff’s Monell claim here, which it is, the City of
New York would still be entitled to dismissal of the majority of Monell claims on
this separate basis. 24
Because of the Court’s disposition of the City’s claims in the 1800 and 9621
Complaints, it does not address the NYPD Defendants’ arguments concerning notice of
claim requirements. (See, e.g., 1800 NYPD Br. 21-22).
The Court Declines Supplemental Jurisdiction over Plaintiff’s
State-Law Claims in the 9621 Complaint
Because the Court has dismissed Plaintiff’s § 1983 constitutional claims,
his only remaining claims allege negligent infliction of emotional distress,
malpractice, unjust enrichment, fraud, and deceptive business practices under
state law. The Court declines to exercise supplemental jurisdiction over these
A district court has discretion to “decline to exercise supplemental
jurisdiction” after “dismiss[ing] all claims over which it has original
jurisdiction.” 28 U.S.C. § 1367(c); see Klein & Co. Futures, Inc. v. Bd. of Trade
of City of N.Y., 464 F.3d 255, 263 (2d Cir. 2006) (“[T]he decision to retain
jurisdiction is discretionary and not a litigant’s right[.]”). In making this
determination, courts “balance the traditional ‘values of judicial economy,
convenience, fairness, and comity.’” Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d
118, 122 (2d Cir. 2006) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
350 (1988)). In general, “if the federal claims are dismissed before trial, … the
state claims should be dismissed as well.” United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966). Moreover, “[a]lthough the exercise of
supplemental jurisdiction is discretionary, the ordinary case ‘will point toward
declining jurisdiction over the remaining state-law claims.’” Jordan v. Chase
Manhattan Bank, 91 F. Supp. 3d 491, 511 (S.D.N.Y. 2015) (quoting In re Merrill
Lynch Ltd. P’ships Litig., 154 F.3d 56, 61 (2d Cir. 1998)).
Here, all factors weigh in favor of declining supplemental jurisdiction
over Plaintiff’s state-law claims. First, judicial economy favors dismissal given
that, despite the lengthy procedural history of the case, the matter still has not
progressed past the pleading stage. See Chenensky v. N.Y. Life Ins. Co., 942 F.
Supp. 2d 388, 392 (S.D.N.Y. 2013); cf. Winter v. Northrup, 334 F. App’x 344,
345-46 (2d Cir. 2009) (summary order) (affirming district court’s decision to
retain supplemental jurisdiction where “(1) discovery had been completed,
(2) the state claims were far from novel, and (3) the state and federal claims
were substantially identical”). Second, refiling in state court will present only a
minor inconvenience to the parties. Third, proceeding to state court will place
none of the parties at any disadvantage relative to their current positions in
this litigation. Fourth and finally, given that only state-law issues remain in
this case, comity dictates that the Court decline to decide those disputes. Cf.
Bray v. City of New York, 356 F. Supp. 2d 277, 287 (S.D.N.Y. 2004) (declining
to exercise supplemental jurisdiction over state claims despite federal
Therefore, the Court dismisses Plaintiff’s claims for negligent infliction of
emotional distress, malpractice, unjust enrichment, fraud, and deceptive
business practices without prejudice to their refiling in state court.
The Court Denies Plaintiff’s Motions for Leave to Amend the 1800
and 9621 Complaints
Plaintiff requests leave in his Opposition to replead his claims. (1800 Pl.
Opp. 30; 9621 Pl. Opp. 38). His request, however, overlooks the procedural
history of his cases, particularly with regards to the 1800 action. As discussed
above, the Court, on multiple occasions, ordered Plaintiff to file an amended
1800 complaint to correct the identified deficiencies. (1800 Dkt. #15, 18).
Plaintiff elected to stand on his original complaint. (1800 Dkt. #19). Many of
the identified deficiencies merited dismissal of Plaintiff’s claims.
The Court is mindful of what the Second Circuit has identified as courts’
“strong preference for resolving disputes on the merits.” Loreley Fin. (Jersey)
No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015) (internal
quotation marks and citations omitted). For this reason, the Court has
considered the supplemental arguments and evidence that Plaintiff presented
in his submissions to the Court, including his Opposition. The Court has
discussed these arguments and evidence throughout its Opinion; and, as
presaged by these discussions, the Court is confident that any attempt by
Plaintiff to replead the claims the Court has dismissed would be futile. See,
e.g., Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (affirming denial of
motion to amend where complaint’s deficiencies were “substantive” and thus
repleading was futile); cf. Ganley v. City of New York, 734 F. App’x 784, 786 (2d
Cir. 2018) (summary order) (“A district court should grant a pro se litigant leave
to amend ‘at least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated.’” (quoting Cuoco)).
In addition, the Court denies Plaintiff’s request to issue additional orders
pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam), “to
identify all of the John Doe ADAs” in the 9621 action (9621 Pl. Opp. 38), and
“all unknown parties” in the 1800 action (1800 Pl. Opp. 30). With regards to
the 9621 action, Plaintiff’s allegations were insufficient to state a viable § 1983
claim. Therefore, “it would be futile to permit amendment of the complaint [to
include names of additional defendants] (and, by extension, to issue a Valentin
order).” Washington v. Westchester Cty. Dep’t of Corr., No. 13 Civ. 5322 (KPF),
2015 WL 408941, at *6 (S.D.N.Y. Jan. 30, 2015). Turning to the 1800 action,
the Court previously issued a Valentin Order on September 13, 2016. (1800
Dkt. #92). Defendants complied with that Order and sent Plaintiff additional
information about the individuals involved in his case. (1800 Dkt. #128).
Plaintiff has not alleged why an additional Valentin Order is necessary.
The Court Denies Plaintiff’s Cross-Motions
As part of his opposition briefing, Plaintiff includes a multitude of “cross
motions.” (1800 Pl. Opp. 23-30; 9621 Pl. Opp. 31-38). Many are not
appropriate for inclusion in his opposition papers. However, given Plaintiff’s
status, the Court considers each of them here and finds none to be
Plaintiff’s Cross-Motion for Default Judgment
In his first cross-motion, Plaintiff renews his April 18, 2018 request for
the entry of default judgments against Defendants Wittner, Barry, and the City
of New York. (9621 Pl. Opp. 31-33; see 9621 Dkt. #81). On May 17, 2018, the
Court denied his request. (9621 Dkt. #82). Once again, Plaintiff advances the
same argument: Defendants failed to answer the 9621 Complaint in a timely
fashion. (9621 Pl. Opp. 31-33). In its prior Order, the Court declined to grant
Plaintiff’s request, explaining:
Each of the defendants against whom Plaintiff seeks an
entry of default has, in fact, responded by submitting
letters requesting pre-motion conferences or leave to file
motions to dismiss. (See Dkt. #54, 76 in No. 15 Civ.
9621, and Dkt. #138 in No. 15 Civ. 1800). Rule 4.A of
the Court’s Individual Rules of Practice in Civil Cases
establishes that the “submission of a pre-motion letter
concerning a motion to dismiss will stay the defendant's
time to answer or otherwise move with respect to the
Complaint.” Because each of the defendants has
submitted pre-motion letters concerning anticipated
motions to dismiss, their time to answer the Complaint
has been stayed. Plaintiff's request for an entry of
default is therefore denied.
(9621 Dkt. #82). Plaintiff advances no new arguments or factual allegations.
As such, the Court adheres to its initial decision and denies Plaintiff’s request
for entry of default judgment for the same reasons.
Plaintiff’s Cross-Motion for Sanctions on MCU
Separately Plaintiff alleges MCU committed fraud upon the Court when it
represented in its motion papers that its only disclosure to the DA Defendants
was pursuant to one grand jury subpoena on January 12, 2012, “despite clear
evidence of prior disclosures.” (1800 Pl. Opp. 2-3, 23). 25 Plaintiff urges the
Court to impose sanctions on MCU pursuant to the Court’s inherent powers.
(Id. at 24). In particular, he seeks sanctions in the amount of $1,000 and asks
the Court to strike MCU’s pleadings. (Id.).
Plaintiff’s claim for sanctions ostensibly flows from MCU’s motion papers.
In support of its motion to dismiss, MCU submitted a declaration that stated
that the company had replied to a Grand Jury Subpoena from ADA David
Smith on January 12, 2019. (Birnbach Decl. ¶ 6 (1800 Dkt. #215-12)).
Plaintiff also asks the Court to order sanctions against Sprint, a defendant in the 1800
action. (1800 Pl. Opp. 24-25). The Court will address Plaintiff’s request for sanctions
against Sprint when it addresses Sprint’s renewed motion for summary judgment,
which remains pending. (1800 Dkt. #266).
Contrary to Plaintiff’s current claims, MCU did not state that this was the one
and only instance in which MCU had provided documents to law enforcement
or other governmental entities related to Plaintiff’s account information.
(Birnbach Supp. Decl. ¶¶ 5-6 (1800 Dkt. #273)). Instead, MCU indicated that a
search of its records for Plaintiff’s account information yielded only the
January 12, 2012 subpoena. (Birnbach Supp. ¶ 6).
However, as a result of the discovery produced in his criminal case,
Plaintiff came into possession of a “Business Record Certification,” executed on
August 31, 2011, by an MCU employee. (1800 Pl. Opp. 23). The document
indicated that MCU had made at least one additional disclosure of information
concerning Plaintiff. (Id.). Plaintiff notified MCU, which conducted a search of
several archived systems and records that were not directly related to Plaintiff.
(Birnbach Supp. Decl. ¶¶ 9-11). During the course of the search, MCU located,
as Plaintiff suspected, an additional grand jury subpoena requesting Plaintiff’s
records. (Id.). This subpoena was not directly related to Plaintiff or the
criminal investigation that led to his conviction, and therefore had not been
discovered in MCU’s initial search. (Id.).
After notifying Plaintiff that its representatives had located the
information he sought, MCU asked that, if Plaintiff was “in possession of any
additional information regarding purportedly improper disclosure of records,
please advise as soon as possible so we can resolve any potential issues.”
(1800 Pl. Opp. 23). Plaintiff has not identified any further issues, but instead
contends that MCU’s offer of assistance is “a game of ‘discovery tag’ to burden
the Plaintiff with revealing further disclosures, before they admit to additional
ones.” (Id. at 24).
Having carefully considered the parties’ submissions, the Court
concludes that sanctions are not warranted. The Court finds no evidence that
MCU misled the Court in its motion papers. To the contrary, the parties’
submissions make plain that MCU acted in the normal course of business in
conducting an initial search; this search did not uncover the 2011 subpoena
because the subpoena was located in an archived system and was part of an
unrelated case. Upon receipt of Plaintiff’s request, MCU acted diligently to
conduct a second search, and promptly provided Plaintiff with the resulting
On the record before it, the Court cannot find that any of the statements
or “material omissions” attributed to MCU was false, much less that any
statement was fraudulent or intended to cause unnecessary delays or increase
the cost of litigation. The Second Circuit has explained that, under Rule 11, a
factual statement “can give rise to the imposition of sanctions only when the
particular allegation is utterly lacking in support.” Kiobel v. Millson, 592 F.3d
78, 81 (2d Cir. 2010) (internal quotation marks and citation omitted). It has
further explained that “[b]ad faith is the touchstone of an award under [28
U.S.C. § 1927],” and that district courts should exercise their inherent power
where a party has “acted in bad faith, vexatiously, wantonly, or for oppressive
reasons.” United States v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO, 948 F.2d 1338, 1345 (2d Cir. 1991) (internal
quotation marks and citation omitted). Because the Court believes that MCU’s
statements to the Court were not made in bad faith, the Court will not impose
sanctions on MCU. Accordingly, Plaintiff’s motion for sanctions is denied.
Plaintiff’s Cross-Motions for Partial Judgment on the Pleadings
In both the 1800 and 9621 actions, via his Opposition, Plaintiff moves for
partial judgment on the pleadings pursuant to Rule 12(c). (1800 Pl. Opp. 2629; 9621 Pl. Opp. 33-37). As a preliminary matter, Plaintiff cannot file such a
motion until Defendants file answers. See 5C Charles A. Wright and Arthur R.
Miller, FED. PRAC. & PROC. § 1367 (3d ed.) (noting that “the plaintiff cannot
move under Rule 12(c) until after an answer has been filed”). In addition,
Plaintiff’s motions fail to comply with the Court’s Individual Rules of Practice in
Civil Cases, which require pre-motion submissions for any motion for judgment
on the pleadings.
Finally, Plaintiff’s motions for judgment on the pleadings are largely a
rehash of arguments that he has raised, and that the Court has rejected, in
opposing Defendants’ motions to dismiss. The Court finds no reason to
reconsider these arguments, or its findings, simply because Plaintiff has recast
them as separate dispositive motions.
With regard to Case No. 15 Civ. 9621, Defendants’ motions to dismiss
are GRANTED, and Plaintiff’s 9621 Complaint is dismissed in its entirety. The
Clerk of Court is directed to terminate all pending motions, adjourn all
remaining dates, and close that case.
With regard to Case No. 15 Civ. 1800, the motions to dismiss submitted
by the following parties are GRANTED in their entirety: T-Mobile, Facebook,
Google, TWC, MCU, Capital One, Chase, Con Edison, and the City of New York.
The Clerk of Court is directed to terminate these parties.
The DA Defendant’s motion is DENIED as to Plaintiff’s claims for
unlawful search and seizure, and GRANTED in all other respects. The NYPD
Defendant’s motion is DENIED as to Plaintiff’s claims for malicious
prosecution, and unlawful search and seizure, and GRANTED in all other
The Clerk of Court is directed to terminate the motions at Docket Entries
166, 169, 171, 174, 179, 183, 185, 189, 211, 216, and 267 in Case No. 15 Civ.
The remaining parties are directed to submit a proposed Case
Management Plan for the Court’s consideration on or before May 1, 2019. The
parties should be mindful that discovery in this case will only be permitted as
it pertains to Plaintiffs’ three remaining claims; discovery may not be taken as
to any claim dismissed in this Opinion.
March 27, 2019
New York, New York
KATHERINE POLK FAILLA
United States District Judge
Sent by First Class Mail to:
Federal Corr. Institution -Low
P.O. Box 1000
Petersburg, VA 23804-1000