Berry v. Village of Millbrook

Filing 63

OPINION AND ORDER re: 44 MOTION to Dismiss filed by Village of Millbrook and 42 MOTION to Dismiss filed by Charles Locke and The Dutchess County District Attorney's Office. For the reasons stated herein, the motions to dismiss of Millbrook a nd the Dutchess DAO are granted. While Plaintiff has filed two Amended Complaints, this is the first time he has been alerted to the deficiencies in his allegations of municipal liability. This dismissal is, therefore, without prejudice. Plaintiff ma y file an Amended Complaint, if he so chooses, consistent with this Opinion and Order, within 45 days of the date of this Opinion and Order. The Clerk of Court is respectfully directed to terminate the pending motions (Dkt. Nos. 42 and 44). (Signed by Judge Kenneth M. Karas on 9/23/2011) The Clerks Office Has Mailed Copies. (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ROBERT D. BERRY,
Plaintiff,
-v-

Case No. 09-CV-04234 (KMK)
OPINION AND ORDER

VILLAGE OF MILLBROOK, THE DUTCHESS
COUNTY DISTRICT ATTORNEY’S OFFICE,
INVESTIGATOR STANLEY MARCHINKOWSKI,
DETECTIVE CHARLES LOCKE, JOHN and/or
JANE DOE,
Defendants.

Appearances:
Robert D. Berry
Salt Point, New York
Pro Se Plaintiff
Steven C. Stern, Esq.
Sokoloff Stern LLP
Westbury, New York
Counsel for Defendant Village of Millbrook
David L. Posner, Esq.
McCabe & Mack LLP
Poughkeepsie, New York
Counsel for Defendants Dutchess County District Attorney’s Office and Charles Locke
KENNETH M. KARAS, District Judge:
Plaintiff Robert D. Berry (“Plaintiff”), proceeding pro se, brings this action pursuant to
42 U.S.C. § 1983 (“§ 1983”) against the Village of Millbrook, New York (“Millbrook”), the
Dutchess County District Attorney’s Office (“Dutchess DAO”), Investigator Stanley
Marchinkowski (“Marchinkowski”), Detective Charles Locke (“Locke”), and John and/or Jane
Doe, asserting violations of his Fourth, Sixth, and Fourteenth Amendment rights, with all counts

stemming from his prosecution in the Millbrook Village Court.1 Plaintiff also asserts claims
under the New York State Constitution. Defendants Millbrook and the Dutchess DAO filed
motions to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6), seeking to dismiss all of Plaintiff’s
claims against them.2 For the reasons stated herein, the motions are granted.
I. Background
For purposes of deciding the instant motions to dismiss, the Court accepts as true the
allegations contained in Plaintiff’s Amended Verified Complaint (“Amended Complaint”) and
construes them in the light most favorable to Plaintiff.
A. Factual Background
On December 13, 2006, Plaintiff was arrested by Locke, a detective with the Dutchess
County Sheriff’s Office, on charges of: (1) Grand Larceny, in violation of N.Y. Penal Law
§ 155.35; (2) Offering a False Instrument for Filing in the First Degree, in violation of N.Y.
Penal Law § 175.35; and (3) Committing a Fraudulent Practice, in violation of Workers’ Comp.
Law § 114.3. (Am. Compl. ¶ 8.) That same day, Plaintiff was arraigned at the Millbrook
Village Court and entered a plea of not guilty. (Id. ¶ 9.) For the next twenty-four months, Judge
Louis Prisco (“Judge Prisco”), an “employee and civil servant” of the Village Court in
Millbrook, was the judge presiding over Plaintiff’s case. (Id. ¶¶ 9, 20.) Plaintiff alleges that

1

In his Verified Complaint and Amended Verified Complaint, Plaintiff also brought suit
against The Daily Freeman newspaper, alleging it published a libelous news story on December
24, 2006, about Plaintiff’s trial based on false information allegedly provided by Locke and
Marchinkowski. (Verified Compl. ¶¶ 2-3, 5, 25, 28; Am. Verified Compl. ¶¶ 4-6, 26-34.) On
December 17, 2010, Plaintiff voluntarily dismissed the action against The Daily Freeman,
without prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). (Dkt. No. 59.)
2

The individual Defendants, Marchinkowski and Locke, did not file motions to dismiss
and have filed Answers to Plaintiff’s Amended Complaint.
2

because “[n]o progress was made in expediting a Discovery Hearing or indictment of the
charges[,] . . . a letter of a Grand Jury waiver was sent, dated April 24, 2007, to the Millbrook
Village Court.” (Id. ¶ 10.) According to Plaintiff, “upon receiving the letter, a Divestiture to
Superior Court, dated May 9, 2007 was filled out” but was “never signed and transmitted to
County Court.” (Id. ¶ 11.) Plaintiff alleges that “there is no evidence that the District Attorney
ever mitigated the charges to misdemeanors therefore granting jurisdiction to the village court.”
(Id.)
However, Plaintiff alleges that “[d]espite the waiver to the Grand Jury, the village court
demanded” that Plaintiff “continue to appear on a monthly basis.” (Id. ¶ 12.) In three court
appearances in 2008, Plaintiff alleges that his then-attorney “tried to explain to the Honorable
Judge Prisco that since “[P]laintiff . . . had waived the matter to the Grand Jury in April of
2007[,] . . . the Village Court no longer had jurisdiction at that point and had no legal reason to
mandate plaintiff’s appearance with an attorney each month.” (Id. ¶ 15.) However, “Judge
Prisco disagreed.” (Id.)
On September 30, 2008, the Assistant District Attorney (“ADA”) moved to reduce the
three felony charges to misdemeanors. (Id. ¶ 16.) Plaintiff “objected on the grounds that there
were no charges pending in the Village Court and the court had no jurisdiction to entertain the
District Attorney’s motion.” (Id.) Judge Prisco asked whether the charges had been presented to
the Grand Jury. (Id.) When the parties explained that the Grand Jury had been waived, Judge
Prisco granted the ADA’s motion. (Id.) On January 8, 2009, the prosecution was terminated
pursuant to N.Y. Crim. Proc. Law § 180.85. (Id. ¶ 17.)3

3

N.Y. Crim. Proc. Law § 180.85 provides that “[a]fter arraignment of a defendant upon
felony complaint . . . either party or the local criminal court or superior court before which the
3

B. Procedural Background
On April 7, 2009, Plaintiff filed a Summons with Notice in the Supreme Court of the
State of New York, County of Dutchess. On April 30, 2009, Millbrook removed the case to this
Court pursuant to 28 U.S.C. §§ 1331 & 1441(b). (Dkt. No. 1.) After it removed the case,
Millbrook submitted a letter to the Court, dated May 6, 2009, asserting that Plaintiff’s Summons
with Notice failed to satisfy the pleading requirements of the Federal Rules of Civil Procedure
and requesting that the Court direct Plaintiff to file a complaint in conformance with the Federal
Rules. (Dkt. No. 2.) In response, the Court requested that Plaintiff file a complaint consistent
with the Federal Rules and provided Plaintiff with the contact number of the Southern District of
New York’s Pro Se Office for assistance. (Dkt. No. 3.) Plaintiff complied and filed a Verified
Complaint on June 8, 2009, naming Millbrook, the Dutchess DAO, the New York State
Insurance Fund (“NYSIF”), The Daily Freeman, and John and/or Jane Doe as defendants. (Dkt.
No. 4.) In September 2009, Defendants Millbrook and the Dutchess DAO filed motions to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. Nos. 20, 22.) On November
7, 2009, Plaintiff notified the Court: (1) that he was voluntarily dismissing the NYSIF as a
Defendant in the case due to 11th Amendment sovereign immunity; and (2) that he intended to
serve an Amended Complaint on “the individuals [] not exempt from [] liability” who had been
directly involved in the alleged violations of Plaintiff’s constitutional rights. (Letter from Pl. to
the Ct. (Nov. 7, 2009) (Dkt. No. 27).)
On January 27, 2010, Plaintiff filed a Motion for Leave to File an Amended Complaint,

action is pending, on its own motive, may move . . . for an order terminating prosecution of the
charges contained in such felony complaint on consent of the parties.” N.Y. Crim. Proc. Law
§ 180.85.
4

seeking to add § 1983 false arrest and malicious prosecution claims and state law defamation
claims against Marchinkowski and Locke. (Dkt. No. 30.) On September 29, 2010, the Court
issued an Opinion and Order granting Plaintiff leave to add the § 1983 claims, but denying leave
with respect to the defamation claim. (Dkt. No. 40.) In the same Opinion and Order, the Court
denied without prejudice the pending motions to dismiss of Millbrook and the Dutchess DAO
because Plaintiff would be filing an Amended Complaint. (Id.) Plaintiff filed his Amended
Complaint on October 18, 2010, adding Marchinkowski and Locke as defendants. (Dkt. No. 41.)
On November 5, 2010, the Dutchess DAO filed a motion to dismiss pursuant to Rule 12(b)(6)
(Dkt. No. 42), and Millbrook filed a 12(b)(6) motion dismiss on November 15, 2010, (Dkt. No.
44). Plaintiff filed an updated Amended Verified Complaint on December 13, 2010 that
removed The Daily Freeman as a defendant and Plaintiff’s defamation claims but was otherwise
identical to the Amended Complaint. (Dkt. No. 57.) The Court designated the updated pleading
the Second Amended Verified Complaint in an Order dated December 14, 2010. (Dkt. No. 56.)
Because Millbrook and the Dutchess DAO submitted their motions to dismiss before Plaintiff
filed this updated pleading (and because the changes in the Second Amended Verified Complaint
did not affect the pending motions in any way), the Court has used the Amended Complaint as
the operative document in deciding the pending motions.
II. Discussion
A. Standard of Review
“On a Rule 12(b)(6) motion to dismiss a complaint, the court must accept a plaintiff’s
factual allegations as true and draw all reasonable inferences in [the plaintiff’s] favor.” Gonzales
v. Caballero, 572 F. Supp. 2d. 463, 466 (S.D.N.Y. 2008); see also Ruotolo v. City of New York,
514 F.3d 184, 188 (2d Cir. 2008) (“We review de novo a district court’s dismissal of a complaint
5

pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all
reasonable inferences in the plaintiff’s favor.” (internal quotation marks omitted)). In
adjudicating a 12(b)(6) motion, a court must confine its consideration to “facts stated in the
complaint or documents attached to the complaint as exhibits or incorporated by reference” and
facts of which the Court may take judicial notice. Nechis v. Oxford Health Plans, Inc., 421 F.3d
96, 100 (2d Cir. 2005); see also Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.
1999).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of a cause of action’s
elements will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (alteration in
original) (citation omitted). Instead, “[f]actual allegations must be enough to raise a right to
relief above the speculative level.” Id. A complaint cannot rest solely on conduct consistent with
behavior that raises a right to relief; a plaintiff must allege “enough facts to state a claim to relief
that is plausible on its face.” Id. at 547. If a plaintiff “ha[s] not nudged [his] claims across the
line from conceivable to plausible, [his] complaint must be dismissed.” Id. “[W]here the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (alteration in original) (quoting Fed. R. Civ. P.
8(a)(2)).
In reviewing a pro se complaint, the Court takes into consideration Plaintiff’s lack of
legal training and holds the complaint “to ‘less stringent standards than formal pleadings drafted
by lawyers.’” Roberts v. IRS, 468 F. Supp. 2d 644, 649 (S.D.N.Y. 2006), aff’d, 297 F. App’x 63
6

(2d Cir. 2008) (quoting Boddie v. Schneider, 105 F.3d 857, 860 (2d Cir. 1997)); see also
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Furthermore, when considering a motion to dismiss
a pro se complaint, the court must interpret the complaint liberally to raise the strongest
arguments that the allegations suggest. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006). “This policy of liberally construing pro se submissions is driven by the
understanding that implicit in the right to self-representation is an obligation on the part of the
court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of
important rights because of their lack of legal training.” Id. at 475 (citing Traguth v. Zuck, 710
F.2d 90, 95 (2d Cir. 1983) (internal quotation marks omitted)). However, mere “conclusions of
law or unwarranted deductions” need not be accepted. First Nationwide Bank v. Gelt Funding
Corp., 27 F.3d 763, 771 (2d Cir. 1994) (quoting 2A Moore & Lucas, Moore’s Federal Practice
¶ 12.08 (2d ed. 1984)).
B. Monell Liability
1. Guiding Principles
Millbrook and the Dutchess DAO both argue that all of Plaintiff’s federal claims against
them should be dismissed under Monell v. Department of Social Services of New York City, 436
U.S. 658 (1978), and its progeny. (Mem. of Law in Supp. of Def. Village of Millbrook’s
Renewed Mot. to Dismiss (“Millbrook Mem.”) 3-6; Dutchess County District Att’y’s Office
Mem. of Law in Supp. of Dismissal (“Dutchess DAO Mem.”) 3-4.)
“Congress did not intend municipalities to be held liable [under § 1983] unless action
pursuant to official municipal policy of some nature caused a constitutional tort.” Monell, 436
U.S. at 691. Thus, “to prevail on a claim against a municipality under Section 1983 based on
acts of a public official, a plaintiff is required to prove: (1) actions taken under color of law; (2)
7

deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an
official policy of the municipality caused the constitutional injury.” Roe v. City of Waterbury,
542 F.3d 31, 36 (2d Cir. 2008). The fifth element reflects the notion that “a municipality may
not be held liable under § 1983 solely because it employs a tortfeasor.” Bd. of Cnty. Comm’rs v.
Brown, 520 U.S. 397, 403 (1997); see also Newton v. City of New York, 566 F. Supp. 2d 256,
270 (S.D.N.Y. 2008) (“As subsequently reaffirmed and explained by the Supreme Court,
municipalities may only be held liable when the municipality itself deprives an individual of a
constitutional right.”). In other words, a municipality may not be held liable under Section 1983
“by application of the doctrine of respondeat superior.” Pembaur v. City of Cincinnati, 475 U.S.
469, 478 (1986) (plurality opinion); see also Vassallo v. Lando, 591 F. Supp. 2d 172, 201
(E.D.N.Y. 2008) (noting that “a municipal entity may only be held liable where the entity itself
commits a wrong”). Instead, there must be a “direct causal link between a municipal policy or
custom and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385
(1989); see also City of St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988) (“[G]overnmental
bodies can act only through natural persons . . . [and] governments should be held responsible
when, and only when, their official policies cause their employees to violate another person’s
constitutional rights.”).
Moreover, “a custom or policy cannot be shown by pointing to a single instance of
unconstitutional conduct by a mere employee of the [municipality].” Newton, 566 F. Supp. 2d at
271; see also City of Oklahoma v. Tuttle, 471 U.S. 808, 823-24 (1985) (“Proof of a single
incident of unconstitutional activity is not sufficient to impose liability under Monell, unless
proof of the incident includes proof it was caused by an existing, unconstitutional municipal
policy, which policy can be attributed to a municipal policymaker.”); Brogdon v. City of New
8

Rochelle, 200 F. Supp. 2d 411, 427 (S.D.N.Y. 2002) (“A single incident by itself is generally
insufficient to establish the affirmative link between the municipal policy or custom and the
alleged unconstitutional violation.”). In the end, therefore, “a plaintiff must demonstrate that,
through its deliberate conduct, the municipality was the ‘moving force’ behind the alleged
injury.” Roe, 542 F.3d at 37 (quoting Brown, 520 U.S. at 404).
“In determining municipal liability, it is necessary to conduct a separate inquiry into
whether there exists a ‘policy’ or ‘custom.’” Davis v. City of New York, 228 F. Supp. 2d 327,
336 (S.D.N.Y. 2002), aff’d, 75 F. App’x 827 (2d Cir. 2003). “The Supreme Court has identified
at least two situations that constitute a municipal policy: (1) where there is an officially
promulgated policy as that term is generally understood (i.e., a formal act by the municipality’s
governing body), and (2) where a single act is taken by a municipal employee who, as a matter
of State law, has final policymaking authority in the area in which the action was taken.”
Newton, 566 F. Supp. 2d at 271 (internal footnote omitted) (citing Monell, 436 U.S. at 690, and
Pembaur, 475 U.S. at 480-81). “A municipal ‘custom,’ on the other hand, need not receive
formal approval by the appropriate decisionmaker . . . .” Id. Instead, “an act performed pursuant
to a ‘custom’ that has not been formally approved by an appropriate decisionmaker may fairly
subject a municipality to liability on the theory that the relevant practice is so widespread as to
have the force of law.” Bd. of Cnty. Comm’rs, 520 U.S. at 404; see also Kern v. City of
Rochester, 93 F.3d 38, 44 (2d Cir. 1996) (noting that a municipality’s custom “need not be
memorialized in a specific rule or regulation”). To prevail on this theory of municipal liability,
however, a plaintiff must prove that the custom at issue is permanent and well-settled. See
Praprotnik, 485 U.S. at 127 (noting that the Supreme Court “has long recognized that a plaintiff
may be able to prove the existence of a widespread practice that, although not authorized by
9

written law or express municipal policy, is ‘so permanent and well settled as to constitute a
custom or usage with the force of law’”) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144,
167-68 (1970) (internal quotation marks omitted)).
2. Claims Against Millbrook
Plaintiff asserts claims against Millbrook under § 1983 for malicious prosecution and for
violation of his Sixth Amendment right to a speedy trial. Millbrook argues that Plaintiff’s claims
are based on purported acts by Judge Prisco and asserts that Millbrook cannot be held liable for
the actions of Judge Prisco.
a. Malicious Prosecution Claim
Plaintiff alleges that Millbrook “used it’s [sic] power to violate [P]laintiff[’s] . . . Federal
and New York State constitutional rights under color of law.” (Am. Compl. ¶ 20.) Plaintiff
implies that Millbrook violated his rights through the actions of Judge Louis Prisco, who “never
challenged the validity of the alleged triple felony and thus permitted his Court to be
manipulated by the District Attorney’s Office in such a wanton, careless, and highly reckless
manner as to rise to the level of intentional culpability.” (Id.) Although Plaintiff does not
indicate precisely what type of claim he is alleging, in light of the Plaintiff’s pro se status, the
Court interprets this claim as one for malicious prosecution.
Plaintiff charges that the violations of his rights were under § 1983 and common law.
(Id. ¶ 21.)4 Specifically, Plaintiff alleges that Judge Prisco allowed himself to be manipulated by

4

Plaintiff does not identify which constitutional rights were violated. However, the
Court is willing to construe Plaintiff’s claim as being brought under the Fourth Amendment. See
Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 115 (2d Cir. 1995) (“[T]he Fourth Amendment is the
proper source of constitutional protection for claims, such as malicious prosecution, that
implicate a person’s liberty interest in respect of criminal prosecutions . . . .”); Landon v. Cnty. of
Orange, No. 08-CV-8048, 2009 WL 2191335, at *3-4 (S.D.N.Y. July 23, 2009) (analyzing
10

the Dutchess DAO and allowed the prosecution to proceed in his court improperly and without
sufficient evidence, but Plaintiff has alleged no facts indicating that such behavior may have
occurred beyond his isolated experience. To successfully bring a claim against Millbrook under
§ 1983, Monell requires Plaintiff to allege that the purported malicious prosecution was part of a
custom or formal policy on the part of Millbrook. This Plaintiff has failed to do. Even
assuming, arguendo, that Plaintiff’s allegations regarding Judge Prisco’s alleged misconduct
have a factual basis, Plaintiff has failed to allege any connection between these purported
constitutional violations and the municipality of Millbrook. Instead, Plaintiff merely asserts that
Judge Prisco is an “employee and civil servant who sat at the Millbrook Court” and “used his
power and authority to intentionally deprive [Plaintiff.” (Id. ¶ 20) However, as noted, the
Supreme Court has made clear that Millbrook cannot be held liable for any actions on the part of
Judge Prisco simply because he is allegedly employed by Millbrook. See Bd. of Cnty. Comm’rs,
520 U.S. at 403; Pembaur, 475 U.S. at 478; Amnesty Am. v. Town of W. Hartford, 361 F.3d 113,
130 (2d Cir. 2004). Therefore, the federal claim by Plaintiff against Millbrook fails because
“[t]he Amended Complaint lacks any factual allegations demonstrating the existence of an
officially-adopted policy or custom [by Millbrook] that caused Plaintiff injury and a direct and
deliberate causal connection between that policy or custom and the violation of Plaintiff’s
federally protected rights.” Joe v. Moe, No. 10-CV-4417, 2011 WL 2416882, at *5 (S.D.N.Y.
June 1, 2011) (alterations and internal quotation marks omitted).5

plaintiff’s complaint “to determine whether it states a claim for malicious prosecution pursuant
to the Fourth Amendment” when the plaintiff alleged that his “liberty interests and Fourteenth
Amendment right to due process of law” were violated by his arraignment).
5

The Court notes that Plaintiff did not name Judge Prisco as a Defendant in this action.
11

In addition, as previously noted, a municipality may also be subject to § 1983 liability for
acts of its officials “who have final policymaking authority” in the area in which the action was
taken. Praprotnik, 485 U.S. at 123 (citing Pembaur, 475 U.S. at 483 (internal quotation marks
omitted)). “[W]hether a particular official has final policymaking authority is a question of state
law.” Id. “The Second Circuit has not addressed the policymaking authority of judges;
however, other circuits have determined that municipal judges do not act as policymakers and
therefore a municipality cannot be liable under Monell for a Section 1983 claim based solely on
the actions of its judges.” Bliven v. Hunt, 478 F. Supp. 2d 332, 337 & n.2 (E.D.N.Y. 2007),
aff’d, 579 F.3d 204 (2d Cir. 2009) (citing cases from the Fifth, Seventh, Eighth, Ninth, and Tenth
Circuits); Rodriguez v. City of New York, No. 02-CV-8203, 2004 WL 444089, at *4 (S.D.N.Y.
Mar. 10, 2004) (concluding that holdings of other circuits “that municipal judges do not act as
policymakers and therefore a municipality cannot be liable under Monell for a section 1983
claim based solely on the actions of its judges . . . is sound and persuasive”). In addition,
multiple district courts have determined that under New York law, village and similar judges are
not considered policymakers for the purposes of evaluating a Monell claim. See Szymaszek v.
Mahar, No. 06-CV-719, 2008 WL 4518613, at *8 (N.D.N.Y. Sept. 29, 2008) (holding that the
City of Troy “cannot be liable through any actions or inactions” by its former city court judge);
Garcha v. City of Beacon, 351 F. Supp. 2d 213, 218 (S.D.N.Y. 2005) (noting that “a
municipality is not liable, vicariously, for an official act of one of its judges”); Estes-El v. Town
of Indian Lake, 954 F. Supp. 527, 536 (N.D.N.Y. 1997) (holding that a Town Judge is not a
policymaker for the Town because “the jurisdiction of his court as well as the requirements of
his job are prescribed by state law” and “his decisions are not final because they are appealable
to higher courts within the state court system” and, “[t]herefore, . . . the Town is not responsible
12

for [the] Judge[’s] conduct when he acts in his judicial capacity, as he did in the present case”).
The Court agrees with these courts and concludes that Judge Prisco is not a policymaker for
Millbrook.
In his opposition to Millbrook’s motion, Plaintiff also suggests that Millbrook trains the
justices who serve in the Village and that, therefore, Millbrook has an obligation to protect
litigants and ensure that Village Court proceedings are carried out efficiently. (Pl. Opp’n to
Millbrook’s Mot. to Dismiss (“Pl.’s Opp’n to Millbrook”) at unnumbered page 3 (Dkt. No. 54).)
Although not raised in his pleadings, in light of Plaintiff’s pro se status, the Court construes this
as a charge that Millbrook failed to properly train its judges. However, despite Plaintiff’s
contention to the contrary, New York village judges are not trained by the villages in which they
serve. Village judges’ training, as well as the rules they must follow, are imposed by the state
legislature and the chief administrator of the courts, not the individual villages. See N.Y. Const.,
art. VI, § 20; see also Estes-El, 954 F. Supp. at 536 (noting that “New York municipal courts are
part of the unified court system for the state” and that “when a municipal judge enforces state
law he does not act as a municipal official or lawmaker, but rather serves only to effectuate state
policies” (alteration and internal quotation marks omitted)).
In addition, even if Millbrook was responsible for the training of its village judges,
Plaintiff still has not sufficiently alleged a § 1983 violation. Plaintiff argues, without providing
any factual basis, that Village Boards are supposed to review case dockets annually, and implies
that the “venue of [his] case for over two years, and the decisions of the Village Justice Staff
refusing Plaintiff . . . of his rights of due process were . . . an [sic] approved act by its’ [sic]
policy makers for the Village of Millbrook.” (Pl.’s Opp’n to Millbrook at unnumbered pages 34.) However, even if Plaintiff could plausibly allege that Millbrook was aware of the delay
13

because of the annual review – which is itself an implausible stretch – judges are creatures of
state law and, thus, Millbrook cannot be liable under Monell for actions involving village judges’
dockets over which Millbrook has no control. See Rodriguez, 2004 WL 444089, at *4
(concluding that because a municipal judge is an employee of the State and not the municipality,
“even if the judge’s actions had amounted to that of a policymaker, the [municipality] would not
be liable under Monell”).
Moreover, Plaintiff still has not suggested that any municipal policymaker or municipal
policy or custom was responsible for violations of any litigants’ rights apart from Plaintiff’s own
alleged experience, and “[p]roof of a single incident of unconstitutional activity is not sufficient
to impose liability under Monell, unless proof of the incident includes proof it was caused by an
existing, unconstitutional municipal policy, which policy can be attributed to a municipal
policymaker.” Tuttle, 471 U.S. at 823-24; see also Connick v. Thompson, 131 S. Ct. 1350, 1356
(2011) (noting that a municipal office may not be held liable under § 1983 for failure to train
based on a single constitutional violation). To reiterate, Judge Prisco is not a policymaker for
the purposes of an alleged § 1983 violation. See Estes-El, 954 F. Supp. at 536. And, despite
Plaintiff’s passing reference in his opposition papers to an approved act by Millbrook’s
policymakers, Plaintiff has failed to identify any such policymaker, or explain how the purported
violation was committed by these town policymakers who have no authority over municipal
judges. Accordingly, because neither Plaintiff’s Amended Complaint nor memorandum of law
plausibly allege any basis for holding Millbrook liable under Monell, Plaintiff’s § 1983
malicious prosecution claim against Millbrook is dismissed.

14

b. Sixth Amendment Claim
Plaintiff also alleges that Judge Prisco, an “employee and civil servant who sat at the
Millbrook Court, as such, used his power and authority to intentionally deprive” Plaintiff of “his
Sixth Amendment Right to a speedy trial of the Federal Constitution and the same right under
the New York State Constitution by granting adjournments for a period of 20 months, without
even so much as sufficiency of evidence to sustain any accusatory information.” (Am. Compl.
¶ 20.) However, Plaintiff has again failed to allege any basis for holding Millbrook liable for
this purported federal constitutional violation. In his Amended Complaint, Plaintiff does not
allege any custom or policy of Sixth Amendment violations by Millbrook and, in his opposition
papers, Plaintiff continues to argue that Judge Prisco violated his rights without making any
reference to any wrongdoing by Millbrook, any act by a Millbrook policymaker, or any policy or
custom, let alone alleging any facts that could plausibly give rise to a Monell claim against
Millbrook for speedy trial violations. Simply put, allegations of adjournments, without more, are
insufficient to survive a 12(b)(6) motion to dismiss because Plaintiff has not plausibly alleged –
as distinguished from offering a conclusory claim of – a policy or custom violating defendants’
speedy trial rights. See Claudio v. City of New York, No. 05-CV-1875, 2007 WL 678370, at *1
(S.D.N.Y. Mar. 5, 2007) (holding that the plaintiff’s claim that the city violated her Sixth
Amendment right to a speedy trial because the Department of Probation sought many
adjournments of her probation proceeding failed, because “injuries directed at a single
individual, without more, are not sufficient proof of the existence of a policy to survive a motion
to dismiss” by a municipality). And, as already discussed, Judge Prisco is not a policymaker for
Millbrook. Accordingly, Plaintiff’s Sixth Amendment speedy trial claim against Millbrook is

15

dismissed.6
2. Claims Against the Dutchess DAO
Plaintiff also asserts claims against the Dutchess DAO under § 1983 for malicious
prosecution.7 The Dutchess DAO argues that Plaintiff’s claim against it should be dismissed

6

Defendants also raise serious questions about the viability of Plaintiff’s Sixth
Amendment claim on the merits, but the Court need not reach those questions in light of the
deficiencies in Plaintiff’s Monell allegations.
7

The Dutchess DAO argues that Plaintiff’s Amended Complaint should be dismissed
because Plaintiff merely alleges that the Dutchess DAO violated Plaintiff’s civil rights “under
color of law pursuant to 42 U.S.C. § 1983 and Common Law,” without specifying which of
Plaintiff’s constitutional or statutory rights were violated. (Dutchess DAO Mem. 4-5.)
However, the Court believes that Plaintiff is attempting to assert a claim of malicious
prosecution against the Dutchess DAO and, in light of Plaintiff’s pro se status, has construed
Plaintiff’s allegations as such. In addition, in his opposition papers, Plaintiff confirms his
intention to assert a malicious prosecution claim against the Dutchess DAO (Pl.’s Opp’n to
Dutchess DAO at unnumbered page 2), which, as noted above, raises a Fourth Amendment
claim.
However, in his memorandum of law, Plaintiff also asserts that “[i]n the reading of the
complaint as a whole document, it addresses the facts that the departments worked together
ignoring any facts as to the truth of the matter which led to the allegations of . . . Attempted
Extortion.” (Id.) Plaintiff elaborates that the Dutchess DAO “promote[d] a guilty plea by means
of extortion to assist the State Insurance Fund in an attempt to collect an amount of
approximately $25,000.00 of Insurance Premium Debt.” (Id. at unnumbered page 3.) Although
the Court is, as always, cognizant of Plaintiff’s pro se status and the need to construe pro se
pleadings liberally, none of Plaintiff’s pleadings contains any such allegations, nor any
statements that could remotely suggest a plausible claim for extortion. Accordingly, the Court
has not considered these statements in deciding this instant motion. If Plaintiff wishes to file a
Third Amended Complaint, he may include additional facts and allegations that he believes set
forth actionable violations.
In addition, the Court notes that Plaintiff references alleged violations of the ABA Model
Code of Professional Responsibility by the Dutchess DAO. (Id. at unnumbered pages 2-3.)
While, of course, attorneys in the Dutchess DAO must comply with the state’s rules of
professional conduct, any purported failure to do so does not give rise by itself to liability under
§1983 for which an individual may recover civil damages, as the rules of professional conduct
do not confer either federal constitutional or statutory rights. See Albright v. Oliver, 510 U.S.
266, 271 (1994) (“Section 1983 is not itself a source of substantive rights, but merely provides a
method for vindicating federal rights elsewhere conferred.” (emphasis added) (internal quotation
marks omitted)).
16

because the Amended Complaint contains no allegation that there was any policy or custom by
the Dutchess DAO, as required to hold it liable under Monell. (Dutchess DAO Mem. 3-4.)
Plaintiff alleges that the Dutchess DAO “used it’s [sic] great discretionary and accusatory
power against [P]laintiff . . . in a wanton, careless and highly reckless manner, having failed to
responsibly marshal and inspect clear unequivocal exculpatory evidence” which “r[ose] to the
level of an intentional use of it’s [sic] great power . . . to deprive plaintiff . . . of his civil rights”
and “continued to press an unfounded case.” (Am. Compl. ¶ 23.)8 Plaintiff also claims that the
Dutchess DAO allowed the prosecution to continue without questioning the validity of the
charges and that it worked with the Village Court to proceed with an unfounded case. (Id. ¶¶ 20,
23.) He further asserts that “[t]here is no evidence that the District Attorney ever mitigated the
[felony] charges [against Plaintiff] to misdemeanors” – which Plaintiff maintains would have
“grant[ed] jurisdiction to the [V]illage [C]ourt” (id. ¶ 11) – until September 30, 2008, when an
Assistant District Attorney “moved to reduce the three pending Felony charges to three
Misdemeanors” in the Village Court, despite Plaintiff’s objection “that there were no charges
pending in the Village Court,” (id. ¶ 16).
Again, to maintain a claim against a municipal entity such as the Dutchess DAO,
Plaintiff must allege “that an official policy of the municipality caused the constitutional injury”
for which Plaintiff seeks recovery. Roe, 542 F.3d at 36. Here, although Plaintiff alleges that the
Dutchess DAO intentionally violated his rights, the Amended Complaint makes no attempt to
allege that any purported violation was the result of any kind of policy or custom. Indeed,

8

Though he does not label it as such, the Court construes this claim as alleging a
violation of the Due Process Clause of the Fifth and Fourteenth Amendments. See Brady v.
Maryland, 373 U.S. 83, 87 (1963) (holding that the Due Process Clause requires prosecutors to
disclose exculpatory evidence to the accused).
17

Plaintiff has not alleged that any wrongful conduct was directed at anyone other than Plaintiff.
For example, Plaintiff has given no indication that evidence was supposedly withheld beyond his
single isolated experience; thus, he has failed to allege that there was a well-settled or
widespread practice of withholding evidence or that the Dutchess DAO was put on notice of
unconstitutional behavior. Plaintiff also has not alleged that the Dutchess DAO as an entity
customarily pursued unfounded cases against others. Nor has Plaintiff alleged that the Dutchess
DAO had a formal policy of such misconduct.
In his opposition to the Dutchess DAO’s motion, Plaintiff claims that the misconduct was
pervasive throughout the entire District Attorney’s Office. Plaintiff maintains that “it was not a
single ‘Tort Feasor’ who intentionally caused the abusive delay or willful denial” of Plaintiff’s
due process rights; instead Plaintiff claims that there was “a Departmental chain of order passed
down from the District Attorney, Bureau Chief, Assistant D.A., to their investigative staff.”
(Pl.’s Opp’n to Dutchess DAO Mot. to Dismiss (“Pl.’s Opp’n to Dutchess DAO”) at
unnumbered page 4.) Plaintiff argues that “[a]ll individuals . . . could have discontinued their
prosecution and prevented any harm in this empty case bearing no facts or evidence,” and that
the office “instead[] pressed on in hopes to obtain a guilty plea to perserve the integrity of [the
Dutchess DAO’s] face to the public.” (Id.) According to Plaintiff, “[t]his pattern and practice
rose to a level of a policy as articulated in Monell.” (Id. at unnumbered page 5.)
Plaintiff misunderstands the requirements of Monell liability. The fact that Plaintiff
alleges that multiple people in the District Attorney’s Office participated in the violation does
not transform his isolated experience into a policy or custom on the part of the Dutchess DAO.
Plaintiff still does not suggest that the Dutchess DAO had a policy or custom of violating the
rights of any criminal defendant besides Plaintiff, and “[p]roof of a single incident of
18

unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the
incident includes proof it was caused by an existing, unconstitutional municipal policy, which
policy can be attributed to a municipal policymaker.” Tuttle, 471 U.S. at 823-24. The Court
does note that Plaintiff’s memorandum of law contains a reference to a chain of command that
included the District Attorney. Although district attorneys may be considered policymakers for
purposes of municipal liability under § 1983, see Frank v. Relin, 1 F.3d 1317, 1327 (2d Cir.
1993), Plaintiff has not plausibly alleged culpable knowledge, let alone any unconstitutional act,
on the part of the Dutchess District Attorney. Even if the Court considers the statements
contained in Plaintiff’s memorandum of law as if they were included in his Amended Complaint,
Plaintiff has made only conclusory statements regarding possible involvement by a policymaker.
Under the plausibility standard set forth in Iqbal, this is plainly insufficient to state a § 1983
claim against the Dutchess DAO as a municipality and survive a motion to dismiss. See Plair v.
City of New York, No. 10-CV-8177, 2011 WL 2150658, at *8 (S.D.N.Y. May 31, 2011)
(dismissing the plaintiff’s claim because his reliance on conclusory allegations “render[ed] his
Monell allegations insufficient under Twombly and Iqbal”); see also Mayes v. N.Y.C. Police
Dep’t, No. 10-CV-1690, 2011 WL 2206739, at *6 (S.D.N.Y. June 6, 2011) (recommending
dismissal, post-Twombly, of Monell claim that was supported only by conclusory allegations and
no factual support). Because Plaintiff has failed to plausibly allege any policy or custom on the
part of the Dutchess DAO, or any unconstitutional act by a policymaker with final decision
making authority, Plaintiff’s federal claim against the Dutchess DAO is dismissed.
C. Notice of Claim
Millbrook and the Dutchess DAO also each argue that any claims that Plaintiff asserts
against them under New York State common law are barred by Plaintiff’s failure to serve a
19

notice of claim. (Millbrook Mem. 10; Dutchess DAO Mem. 5-6.) Plaintiff alleges that he filed a
timely notice of claim as required by law by April 2, 2009. (Am. Compl. ¶ 18.) However,
Defendants argue that the purported notice of claim “is actually a Summons with Notice, filed in
the Dutchess County Clerk’s Office.” (Millbrook Mem. 10.) A review of Plaintiff’s initiallyfiled Verified Complaint shows Defendants’ contention to be correct. The Verified Complaint,
which was filed on June 8, 2009, also alleges that Plaintiff filed a timely notice of claim
(Verified Compl. ¶ 17), and cites and attaches as support the Summons with Notice dated April
2, 2009 that Plaintiff filed in Supreme Court of the State of New York, County of Dutchess, to
initiate this action, (id. Ex. 1).
“[I]n a federal court, state notice-of-claim statutes apply to state-law claims.” Hardy v.
N.Y.C. Health & Hosps. Corp., 164 F.3d 789, 793 (2d Cir. 1999); see also Warner v. Vill. of
Goshen Police Dep’t, 256 F. Supp. 2d 171, 175 (S.D.N.Y. 2003) (“The notice of claim
requirements apply equally to state court claims brought as pendent claims in a federal civil
rights action.”). New York law “provides that no tort action shall be prosecuted or maintained
against a municipality or any of its officers, agents, or employees unless: (1) a notice of claim
has been served against the [municipality]; (2) the [municipality] has refused adjustment or
payment of the claim; and (3) the action is commenced within one year and ninety days after the
event upon which the claim is based occurred.” Gibson v. Comm'r of Mental Health, No. 04CV-4350, 2006 WL 1234971, at *5 (S.D.N.Y. May 8, 2006) (citing N.Y. Gen. Mun. Law § 50i). Plaintiffs are required to serve the notice of claim “within ninety days after the claim arises.”
N.Y. Gen. Mun. Law § 50-e(1)(a). This notice-of-claim requirement is “construed strictly by
New York state courts,” and “[f]ailure to comply with these requirements ordinarily requires a
dismissal for failure to state a cause of action.” Hardy, 164 F.3d at 793-94 (citation and internal
20

quotation marks omitted).
Here, Plaintiff seemed to mistakenly believe that his filing of a “Summons with Notice”
in state court satisfied New York’s notice-of-claim requirement. However, the New York statute
plainly provides that a separate notice of claim must be filed prior to the initiation of a lawsuit.
See N.Y. Gen. Mun. Law § 50-i(1). The notice-of-claim statute would be rendered meaningless
if the initiation of a lawsuit in state court relieved a plaintiff of the duty to file a notice of claim
with a municipality. As the Second Circuit has explained, “[t]he purpose of the notice-of-claim
requirement is to afford the municipality an adequate opportunity to investigate the claim in a
timely and efficient manner and, where appropriate, to settle claims without the expense and
risks of litigation.” Hardy, 164 F.3d at 794 (citations and internal quotation marks omitted).
Thus, although Plaintiff’s initiation of a state court suit by filing a Summons with Notice in state
court may have actually provided notice of his claims, it cannot be considered a properly-filed
notice of claim under the statute.
Plaintiff acknowledges this point in his opposition to the Dutchess DAO’s motion, stating
that “[a]s per New York G.M.U. Law 50-E Notice of Claim was not filed within the 90 days, the
commencement of the action was.” (Pl.’s Opp’n to Dutchess DAO at unnumbered page 5.)
Plaintiff then notes that after Millbrook removed the case to this Court, the Court ordered
Plaintiff to file a proper complaint consistent with the Federal Rules of Civil Procedure, which
Plaintiff apparently interprets as the Court exercising discretion to allow the case “to proceed
with the filing of a Late Notice of Claim.” (Id.)9

9

As explained supra Section I.B, after removing the case to federal court, Millbrook
asked the Court to direct Plaintiff to file a complaint in conformance with the Federal Rules
(Dkt. No. 2), a request which was granted by the Court, (Dkt. No. 3).
21

Although the Court is sympathetic to the difficulties encountered by a pro se litigant such
as Plaintiff, Plaintiff’s argument is unpersuasive. By requesting that Plaintiff file a complaint
consistent with the Federal Rules after his case was removed, the Court did not grant Plaintiff
permission to file a late notice of claim. New York’s notice-of-claim statute is a state law
requirement entirely distinct from the pleading requirements of the Federal Rules of Civil
Procedure. And, in response to the Court’s direction, Plaintiff filed his Verified Complaint on
June 8, 2009 (Dkt. No. 4); he did not file a notice of claim. As already noted, filing a complaint
is not the same thing as filing a notice of claim, which has a specific meaning under New York
law.
Moreover, although this Court is currently presiding over Plaintiff’s case, this Court does
not have jurisdiction to grant Plaintiff leave to serve a late notice of claim. New York law
provides that “[u]pon application, the court, in its discretion, may extend the time to serve a
notice of claim,” and lists several factors to consider in determining whether to grant an
extension. N.Y. Gen. Mun. Law § 50-e(5). The statute also provides that “[a]ll applications
under this section shall be made to the supreme court or to the county court.” Id. § 50-e(7). The
Second Circuit has not definitively ruled on whether a federal district court may grant a request
to extend time to serve the notice of claim. See Corcoran v. N.Y. Power Auth., 202 F.3d 530,
540 (2d Cir. 1999) (noting that the “appropriate state court may extend the time to file a notice of
claim” under § 50-e, but declining to decide “whether the federal court has such jurisdiction”
because the request for leave to file a late notice of claim was properly denied on the merits); cf.
Parise v. N.Y.C. Dep't of Sanitation, No. 03-CV-1673, 2007 WL 2746912, at *7 (E.D.N.Y. Sept.
19, 2007) (“[T]here is an open question as to whether a federal district court, as opposed to a
state supreme court or a county court, has jurisdiction to permit the amendment of a notice of
22

claim.”), aff’d, 306 F. App’x 695 (2d Cir. 2009). However, district courts within the Second
Circuit “have routinely found that they lack jurisdiction to even consider such an application.”
Humphrey v. Cnty. of Nassau, No. 06-CV-3682, 2009 WL 875534, at *21 (E.D.N.Y. Mar. 30,
2009) (“This [c]ourt agrees with the overwhelming weight of authority among district courts in
the Second Circuit and finds that Section 50-e(7) permits only certain state courts – ‘the supreme
court or the county court’ in certain counties – to consider and to grant an application for an
extension of time in this context.” (alteration omitted) (collecting cases)); see also Harris v.
Howard, No. 08-CV-4837, 2010 WL 2404293, at *1 (S.D.N.Y. June 15, 2010) (“A federal judge
does not have the power to authorize the filing of a late notice of claim against [a
municipality].”); Costabile v. Cnty. of Westchester, 485 F. Supp. 2d 424, 431 (S.D.N.Y. 2007)
(holding that district court “lack[ed] jurisdiction to decide plaintiffs' application to serve a late
notice of claim”); Gibson, 2006 WL 1234971, at *5 (“Federal courts do not have jurisdiction to
hear complaints from plaintiffs who have failed to comply with the notice of claim requirement,
or to grant permission to file a late notice.”); Polite v. Button, 999 F. Supp. 705, 708 (N.D.N.Y.
1998) (concluding that district court lacked “jurisdiction to entertain plaintiff’s motion for leave
to file a late notice of claim,” because “[s]uch applications must be made to the supreme or
county court”); Brown v. Metro. Transp. Auth., 717 F. Supp. 257, 260 (S.D.N.Y. 1989) (“Until
the state legislature amends § 50-e(7) to include federal trial courts, [the court has] no choice but
to dismiss for lack of jurisdiction plaintiff's application to file a late notice of claim or to have his
notice of claim deemed timely filed.”). Therefore, this Court lacks jurisdiction, pursuant to § 50e(7), to grant Plaintiff an extension of time to file a late notice of claim. Accordingly, all of the
state law claims asserted by Plaintiff against Millbrook and the Dutchess DAO are dismissed.

23

III. Conclusion
For the reasons stated herein, the motions to dismiss of Millbrook and the Dutchess DAO
are granted. However, "[a] district court 'should not dismiss a pro se complaint without granting
leave to amend at least once when a liberal reading of the complaint gives any indication that a
valid claim might be stated.'" Baptista v. Hartford Bd. ofEduc., No. 09-CV-3470, 2011 WL
2456360, at *2 (2d. Cir. June 21, 2011) (summary order) (alteration omitted) (quoting Branum v.

Clark, 927 F.2d 698, 705 (2d Cir. 1991)); see also Traguth v. Zuck, 710 F.2d 90,95 (2d Cir.
1983) {"Trial courts have been directed to ... allow amendment of pro se complaints fairly
freely." (internal quotation marks omitted)). While Plaintiff has filed two Amended Complaints,
this is the first time he has been alerted to the deficiencies in his allegations of municipal
liability. This dismissal is, therefore, without prejudice. Plaintiff may file an Amended
Complaint, ifhe so chooses, consistent with this Opinion and Order, within 45 days of the date
of this Opinion and Order. The Clerk of Court is respectfully directed to terminate the pending
motions (Dkt. Nos. 42 and 44).

SO ORDERED.
Dated:

White Plains"",New York
September~, 2011

24

Service List (via Mail by the Clerk's Office)
Robert D. Berry
2517 Route 44, 11-126
Salt Point, NY 12578
Pro Se Plaintiff

Steven C. Stem, Esq.
Sokoloff Stem LLP
355 Post Avenue, Suite 201
Westbury, NY 11590
[phone]
[e-mail]
Counsel for Defendant Village ofMillbrook

David L. Posner, Esq.
McCabe & Mack LLP
63 Washington Street
P.O. Box 509
Poughkeepsie, NY 12602
[phone]
[e-mail]
Counsel for Defendants Dutchess County District Attorney's Office and Charles Locke