McKiver v. NYC PD Midtown S Manhattan Police Department et al
Filing
63
AMENDED MEMORANDUM DECISION AND ORDER adopting 45 Report and Recommendations, 54 Report and Recommendations. Magistrate Judge Parker's February and May Reports are ADOPTED. The motions to dismiss brought by Defendants Wasserstein, Levy, and the City of New York, (ECF Nos. 26, 36, and 41), are GRANTED. The Clerk of Court is directed to close the motions accordingly. (Signed by Judge George B. Daniels on 7/23/2018) (mro)
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UNITED ST ATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JEFFREY MCKIVER,
Plaintiff,
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AMENDED MEMORANDUM
DECISION AND ORDER
17 Civ. 4411 (GBD) (KHP)
CITY OF NEW YORK, THOMAS GERDING,
ALBERTO PINGY, GEORGE GARCIA,
AMANDA LEVY, and ZWI WASSERSTINE,
Defendants.
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GEORGE B. DANIELS, United States District Judge:
Plaintiff Jeffrey McKiver, pro se, brings this action pursuant to 42 U.S.C. § 1983 against
Defendants City of New York, Assistant District Attorney Amanda Levy, Plaintiffs former defense
attorney, Zwi Wasserstein, 1 and three police officers, arising out of his arrest and subsequent
prosecution for the unlawful possession of drugs and a switchblade knife.
2
(See Compl., ECF No.
1.) This matter was referred to Magistrate Judge Katherine H. Parker for general pretrial supervision,
as well as to report and recommend on any dispositive motions. (Order of Reference dated October
23, 2017, ECF No. 12.) Defendants Wasserstein, Levy, and the City of New York now move to
dismiss the claims asserted against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. (See ECF Nos. 26, 36, and 41, respectively.)
1
The complaint incorrectly spells Zwi Wasserstein's name as "Wasserstine." (See Comp!., ECF No. I, at 1.)
For the sake of clarity, this Court uses the correct spelling.
2
The three police officers named in the complaint-Thomas Gerding, George Garcia, and Alberto Pineyhave not been served with process in this matter. (See City of New York's Mem. in Supp. of Mot. to Dismiss,
ECF No. 42, at I n. l .)
Before this Court are two Reports and Recommendations from Magistrate Judge Parker
concerning Defendants' motions to dismiss. In her February 16, 2018 Report and Recommendation,
(the "February Report," ECF No. 45), Magistrate Judge Parker recommends that Wasserstein's
motion to dismiss for failure to state a claim be granted. (Id at 8.) The May 16, 2018 Report and
Recommendation, (the "May Report," ECF No. 54), recommends that the claims against Levy and
the City of New York be similarly dismissed. 3 (Id at 9.) In both Reports, Magistrate Judge Parker
advised the parties that failure to file timely objections would constitute a waiver of those objections
on appeal. (February Report at 8; May Report at 10.)
Having reviewed the February and May Reports for clear error and finding none, this Court
ADOPTS them in full.
I.
FACTUAL BACKGROUND
Plaintiff's claims arise out of his August 22, 2014 arrest at the Port Authority Bus Terminal
in New York. (May Report at 2.) Plaintiff asserts that while he was at the Port Authority, he was
unlawfully stopped and searched by an undercover police officer and arrested without probable cause.
(Id)
However, according to documents from Plaintiff's court cases, 4 judicial notice of which may
properly be taken, (see id at 2 n. l .), the undercover officer stopped Plaintiff after he observed the
handle of a knife sticking out of Plaintiff's pants. (Id at 2.) The officer then examined the contents
of Plaintiff's backpack and observed bundles of white envelopes he believed to be narcotics, which
3
The relevant procedural and factual background is set forth in greater detail in the February and May Reports
and is incorporated herein.
As explained in the February and May Reports, Plaintiff was initially prosecuted by the New York County
District Attorney's Office. However, those charges were dismissed when the U.S. Attorney's Office for the
Southern District of New York obtained an indictment charging Plaintiff for the same underlying conduct.
(See May Report at 3.)
4
2
were later confirmed as 3,499 glassine envelopes of heroin. (Id.) The officer and his partner placed
Plaintiff under arrest and took him to 100 Centre Street, where he met with Defendant ADA Levy.
(Id. at 3.)
Levy advised Plaintiff of his Miranda rights and asked Plaintiff if he wanted to make a
statement. (Id.) Because Plaintiff declined and asked for an attorney, no statement was taken. (Id.)
At or about that time, the court assigned Defendant Wasserstein, an attorney with the New York
County Defender Services, to represent Plaintiff. (February Report at 2.) On or about September 3,
2014, a grand jury in New York County indicted Plaintiff for Criminal Possession of a Controlled
Substance in the Second Degree and Criminal Possession of a Weapon in the Third Degree, among
other crimes. (May Report at 3.) Soon thereafter, a federal grand jury in the Southern District of
New York returned an indictment against Plaintiff based on the same underlying facts as the state
court indictment. (Id.) In light of the federal case pending against Plaintiff, the New York County
District Attorney's Office dismissed all charges against Plaintiff.
(Id.)
ADA Levy signed the
documents dismissing the charges against Plaintiff. (Id.)
In connection with his federal criminal case, Plaintiff moved to suppress the evidence
recovered by the undercover police officer, arguing that the drugs and the switchblade knife were the
fruits of an unlawful stop and search. (Id. at 4.) United States District Judge Shira A. Scheindlin
(Ret.) held a suppression hearing on Plaintiff's motion over the course of three days, after which
Judge Scheindlin denied Defendant's motion to suppress. (Id.) Plaintiff ultimately pled guilty to the
sole count charged in the federal indictment, and was sentenced to sixty-eight months' imprisonment
and five years of supervised release. (Id.)
In his Section 1983 complaint, Plaintiff asserts that the August 22, 2014 stop and search were
unlawful and that the police officers lied about the circumstances giving rise to the stop. (Id. at 3)
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Plaintiff also claims that the officers used excessive force against him when they placed him under
arrest and that they did not inform him of his Miranda rights when they interrogated him. (Id. at 34.)
Plaintiff also claims that ADA Levy did not permit him to stand beside his attorney when he
was indicted. (Id. at 4.) In addition, the complaint alleges that an "Assistant District Attorney" said
that if Plaintiff did not accept a plea offer for one to three years' imprisonment, "the Federal system
was going to take [the] case." (Compl. at 13.) It is not clear, however, to whom Plaintiff is referring.
In response to Defendants' motion to dismiss, Plaintiff further claims that the prosecutor improperly
"vouched" for the police officers, though again it is unclear to whom Plaintiff is referring. (May
Report at 4.)
Plaintiff alleges that Attorney Wasserstein committed legal malpractice and provided him
ineffective assistance of counsel.
(February Report at 3.)
In particular, Plaintiff claims that
Wasserstein ignored Plaintiff's wishes to testify before the New York County grand jury and waived
Plaintiff's right to testify without his consent. (Id. at 2.) Plaintiff further claims that Wasserstein
failed to investigate Plaintiff's claims of innocence by failing to seek surveillance video from the Port
Authority Bus Terminal. (Id.) Plaintiff also alleges that Wasserstein failed to competently crossexamine the arresting officers, failed to consult Plaintiff about entering a plea, failed to object to
certain conduct by the prosecution, failed to obtain funds to hire an investigator, delayed filing a
motion to suppress, and conspired with the state prosecutor and the arresting officers to deprive him
of his constitutional rights. (Id. at 2-3.)
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II.
LEGALSTANDARDS
A. Reports and Recommendations
A court "may accept, reject, or modify, in whole or in part, the findings or recommendations"
set forth within a magistrate judge's report. 28 U.S.C. § 636(b)(l)(C). Portions of a magistrate
judge's report to which no or "merely perfunctory" objections are made are reviewed for clear error.
See Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006) (citation omitted). Clear error
is present only when "upon review of the entire record, [the court is] left with the definite and firm
conviction that a mistake has been committed." United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006)
( citation omitted).
Where there are objections, however, the court must make a de nova determination as to those
portions of the report to which objections are made. See 28 U.S.C. § 636(b)(l)(C); Rivera v. Barnhart,
423 F. Supp. 2d 271,273 (S.D.N.Y. 2006). The court may also receive further evidence or recommit
the matter to the magistrate judge with instructions. See 28 U.S.C. § 636(b)(l)(C); Fed. R. Civ. P.
72(b ). The court need not conduct a de nova hearing on the matter. See United States v. Raddatz,
447 U.S. 667, 675-76 (1980). Rather, it is sufficient that the court "arrive at its own independent
conclusion" regarding those portions of the report to which objections were made. Nelson v. Smith,
618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985) (quoting Hernandez v. Estelle, 711 F.2d 619, 620 (5th
Cir. 1983)).
B. Motion to Dismiss under Rule 12(b)(6)
To survive a motion to dismiss brought under Rule 12(b)(6), "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 At!. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court
5
to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556
U.S. at 678. In deciding a 12(b)(6) motion, the court must accept as true all well-pleaded allegations
in the complaint and draw all reasonable inferences in the plaintiff's favor. See NJ Carpenters
Health Fund v. Royal Bank of Scot. Grp., PLC, 709 F.3d 109, 119-20 (2d Cir. 2013); Chambers v.
Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The court, however, need not credit "mere
conclusory statements," Iqbal, 556 U.S. at 678, nor must it give effect to "legal conclusions couched
as factual allegations." Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir.
2007) (citing Twombly, 550 U.S. at 555).
Prose litigants are generally "entitled to some latitude in meeting these requirements, as [their
complaints] are held to 'less stringent standards than formal pleadings drafted by lawyers."' Martinez
v. Ravikumar, 536 F. Supp. 2d 369,370 (S.D.N.Y. 2008) (quoting Boddie v. Schnieder, 105 F.3d 857,
860 (2d Cir. 1997)). Nonetheless, to withstand a motion to dismiss, "a pro se plaintiff must still plead
sufficient facts to state a claim that is plausible on its face." Chukwueze v. NYCERS, 891 F. Supp. 2d
443, 450 (S.D.N.Y. 2012) (internal quotation marks and citation omitted).
"Even from pro se
plaintiffs, bald assertions and conclusions of law are not adequate." Ruotolo v. Fannie Mae, 933 F.
Supp. 2d 512,524 (S.D.N.Y. 2013) (internal quotation marks and citation omitted).
III. PLAINTIFF'S COMPLAINT FAILS TO STATE A CLAIM
Plaintiff filed untimely responses raising only perfunctory objections to the February and May
Reports and the recommendations contained therein.
(See Pl.'s Objs. to the February Report
("February Objections"), ECF No. 59; 5 Pl. 's Objs. to the May Report, ECF No. 60.) Insofar as
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Plaintiffs submission is styled as a "Response to Defendant [sic] Motion to Dismiss" and is addressed to
Magistrate Judge Parker. However, because the submission makes reference to the recommended dismissal
of Plaintiffs claims against Defendant Wasserstein, this Court understands it as representing Plaintiffs
objections to the February Report.
6
Plaintiff's "objections" do not address the substance of Magistrate Judge Parker's Reports or their
legal reasoning, clear error is the appropriate standard of review based on Plaintiff's general and
perfunctory objections. However, even applying a de nova standard, Plaintiff's complaint must be
dismissed for failure to state a cause of action against Defendants Wasserstein, Levy, and the City of
New York.
A. Plaintiff's Claims Against Wasserstein
The February Report construed Plaintiff's complaint as asserting two causes of action against
Wasserstein: (1) a violation of Plaintiff's civil rights under Section 1983 by providing ineffective
assistance of counsel and conspiring with the NYPD and Defendant Levy to fabricate a case against
him; and (2) legal malpractice under New York common law.
(February Report at 4.) As the
February Report properly found, neither claim is valid.
The February Report correctly found that Plaintiff's allegations about Wasserstein's
performance as his attorney do not state a claim for relief under Section 1983. (February Report at
5.) As the Report notes, it is well settled that an attorney performing the traditional functions of
defense counsel is not acting under color of state law, an essential element of a Section 1983 claim.
(Id. (citing Polk Cty. v. Dodson, 454 U.S. 312,325 (1981).) The February Report also correctly found
that Plaintiff's allegations of a conspiracy between Wasserstein, the police, and ADA Levy lack
sufficient factual content to form the basis of a Section 1983 claim. (February Report at 6.) Where,
as here, a plaintiff's "conspiracy allegations are strictly conclusory" and the plaintiff "has not
provided any 'details of time and place,' ... his § 1983 conspiracy claim must be dismissed."
Ciambriello v. Cty. of Nassau, 292 F.3d 307, 325 (2d Cir. 2002) (citation omitted).
Plaintiff's
conclusory assertion that Wasserstein, the police officers, and Defendant Levy were all working
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together "under color of State law," (February Objs. at 2), is insufficient to establish this claim.
Accordingly, Plaintiff's Section 1983 claim is dismissed.
The February Report further correctly found that Plaintiff's state law malpractice claim fails
as well. (February Report at 7.) "[T]o state a cause of action for legal malpractice arising from
negligent representation in a criminal proceeding, [a] plaintiff must allege his innocence or a colorable
claim of innocence of the underlying offense, for so long as the determination of his guilt of that
offense remains undisturbed, no cause of action will lie." Abuhouran v. Lans, 269 F. App'x 134, 135
(2d Cir. 2008). Here, Plaintiff concedes that he possessed marijuana and a knife when he was arrested,
and he pled guilty to the federal charge of possessing heroin with the intent to distribute. (Com pl. at
8-10.) Thus, as the February Report correctly found, Plaintiff cannot establish a colorable claim of
innocence. (February Report at 7.) Plaintiff's legal malpractice claim is therefore dismissed.
B. Plaintiff's Claims Against Levy
The May Report correctly found that Plaintiff's claims against Defendant Levy are barred by
the doctrine of prosecutorial immunity. (May Report at 7.) As the May Report notes, the Eleventh
Amendment protects prosecutors from being sued in their official capacities. See Rodriguez v.
Weprin, 116 F.3d 62, 66 (2d Cir. 1997); Ying Jing Gan v. City ofNew York, 996 F.2d 522, 536 (2d
Cir. 1993 ). In addition, acts taken by a prosecutor during the performance of traditional prosecutorial
functions, including initiating a prosecution, engaging in plea negotiations, and dismissing charges,
are "entitled to the protections of absolute immunity." Buckley v. Fitzsimmons, 509 U.S. 259, 273
(1992). The May Report correctly found that Plaintiff's allegations against Levy concern her actions
as a prosecutor and involve the discharge of traditional prosecutorial duties. (May Report at 7.)
Accordingly, Levy is entitled to immunity from the claims Plaintiff asserts against her. Those claims
are therefore dismissed.
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C. Plaintiff's Claims Against the City of New York
The May Report also correctly found that Plaintiff has failed to state a claim against the City
of New York. (May Report at 9.) It is well settled that a municipality may be held liable under
Section 1983 "for the violation of a person's civil rights only if the moving force behind that violation
was an official policy or custom of the municipality." Williams v. Town of Southington, 205 F.3d
1327 (2d Cir. 2000) (citing Monell v. Dep 't of Social Servs., 436 U.S. 658, 690-94 (1978). Thus, to
prevail on a Section 1983 claim against a municipality, the plaintiff must allege facts showing: (1)
the existence of a municipal policy, custom, or practice, and (2) that the policy, custom, or practice
caused the violation of the plaintiff's rights. See Jones v. Town of East Haven, 691 F.3d 72, 80 (2d
Cir. 2012). Where a plaintiff fails to identify a specific policy, custom, or practice that caused the
alleged constitutional violation, the claims against the municipality must be dismissed. See Costello
v. City of Burlington, 632 F.3d 41, 49 (2d Cir. 2011).
As the May Report correctly found, Plaintiff's complaint fails to allege any facts showing the
existence of a policy, custom, or practice that caused the alleged constitutional violation.
Furthermore, as the Report found, a claim based on a single incident, as here, is insufficient to give
rise to municipal liability under Section 1983. See Fenner v. City of New York, No. 08-CV-2355
(BMC) (LB), 2009 WL 5066810, at *4 (E.D.N.Y. Dec. 21, 2009) (citing Oklahoma City v. Tuttle,
471 U.S. 808, 823-24 (1985)). The May Report therefore appropriately concluded that Plaintiff's
complaint fails, as a matter of law, to state a claim against the City of New York. (May Report at 9.)
Plaintiff's claims against the City ofNew York are therefore dismissed.
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IV. CONCLUSION
Magistrate Judge Parker's February and May Reports are ADOPTED. The motions to dismiss
brought by Defendants Wasserstein, Levy, and the City ofNew York, (ECF Nos. 26, 36, and 41), are
GRANTED. 6
The Clerk of Court is directed to close the motions accordingly. 7
Dated: New York, New York
July 23, 2018
SO ORDERED.
6
On June 6, 2018, Plaintiff filed an application requesting that this Court seek counsel to represent him pro
bono. (See ECF No. 57.) However, for the reasons articulated herein, as well as in the February and May
Reports, Plaintiff has failed to show that any of his claims have merit. Accordingly, Plaintiffs request for the
appointment of pro bono counsel is DENIED.
7
A previous version of this Memorandum Decision and Order dated July 19, 2018, erroneously directed the
Clerk of Court to close this case and enter judgment accordingly. (See ECF No. 61.) The Clerk of Court is
hereby directed to VA CATE the Judgment dated July 20, 2018, (ECF No. 62), until further order of this Court
and reopen this action.
10
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