McGee v. Dunn et al
Filing
80
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR REARGUMENT, RELIEF FROM JUDGMENT OR, IN THE ALTERNATIVE, TO AMEND THE COMPLAINT: the plaintiff's motion for reargument, relief from judgment or, in the alternative, leave to amend the complaint (ECF No. 61) is hereby DENIED. (Signed by Judge Frederick P. Stamp, Jr on 4/16/2013) (lnl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------JAMES P. McGEE,
09 Civ. 6098 (FPS)
Plaintiff,
v.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S
JAMES DUNN, J. DUNN CONSTRUCTION CORP.,
MOTION FOR REARGUMENT,
ECTOR PEREZ GALINDO, TOWN OF CARMEL,
RELIEF FROM JUDGMENT
TOWN OF CARMEL POLICE DEPARTMENT,
OR, IN THE ALTERNATIVE,
TOWN OF CARMEL POLICE OFFICERS,
TO AMEND THE COMPLAINT
CHRISTOPHER FOX,
JOHN DOE (Fox’s supervisor
on the day of the arrest),
DET. ROBERT BAGNAROL, LT. BRIAN KARST,
SGT. JOHN (JACK) HARNEY,
LT. MICHAEL CASSARI,
CHIEF MICHAEL R. JOHNSON,
PUTNAM COUNTY DISTRICT ATTORNEY’S OFFICE,
KEVIN WRIGHT, ESQ., then-Putnam County
District Attorney and
ROBERT A. NOAH, ESQ., Putnam County
Assistant District Attorney,
Defendants.
-----------------------------------------I.
Background1
This action arose out of a longstanding dispute between the
plaintiff, James P. McGee (“McGee”), and one of the fifteen named
defendants, James Dunn (“Dunn”).
In his complaint, filed in the
United States District Court for the Southern District of New York,
the plaintiff asserted that the defendants conspired to bring about
1
An extensive background of this action is provided in this
Court’s memorandum opinion and order granting certain defendants’
motions to dismiss and staying this action as to defendant Dunn.
ECF No. 50.
Therefore, this Court will not reiterate such
information here, but instead will focus on the motion currently
pending before this Court.
his arrest and prosecution based on false and misleading evidence
and to engage in a malicious abuse of process.
The plaintiff
brought his complaint pursuant to 42 U.S.C. § 1983, alleging due
process violations that resulted from the defendants’ conspiracy.
According to the plaintiff, he is entitled to compensatory damages,
punitive damages, and attorney’s fees for the mental and emotional
pain
and
suffering
he
has
experienced
as
a
result
of
the
defendants’ alleged conspiracy.
The defendants filed four separate motions to dismiss pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
After
the parties briefed these motions, this Court entered a memorandum
opinion
and
order
(“original
opinion”),
wherein
it
granted
defendants’ motions to dismiss as to all but one defendant,
defendant Dunn. As to defendant Dunn, this Court stayed the action
due to his Chapter 7 bankruptcy petition.
The plaintiff then
appealed this judgment to the United States Court of Appeals for
the Second Circuit.
After filing an appeal with the Second
Circuit, however, the plaintiff filed a motion for reargument,
relief from judgment or, in the alternative, leave to amend the
2
complaint (“pending motion”).2
Due to this motion, the Second
Circuit entered a stay of appeal.
In the plaintiff’s pending motion with this Court, he argues:
(1) the court overlooked overwhelming support in both the case law
and the existing record for the conclusion that statement of
defendant
Ector
Galindo
(“Galindo”)
could
not
have
provided
probable cause to arrest McGee; (2) since there are disputed issues
of fact as to the existence of probable cause to arrest, the court
erred in deciding that the police were entitled to qualified
immunity;
(3)
because
the
complaint
sufficiently
alleges
the
absence of probable cause, there are factual issues that need to be
resolved before any determination can be made as to whether Robert
A. Noah, Esq. (“Noah”) or Kevin Wright, Esq. (“Wright”) are
entitled to absolute immunity for their investigatory acts; (4) the
court erroneously applied New York law in finding that Judge
Spofford’s decision was not a favorable termination for purposes of
a malicious prosecution claim; (5) the court overlooked controlling
2
Plaintiff purports to bring this motion under Federal Rules
of Civil Procedure 59(e) and 60(b), as well as Local Rule 6.3.
This Court, however, finds that Rules 59(e) and 60(b) are
inapplicable to the pending motion. Rule 59(e) applies to motions
seeking an alteration or amendment to a judgment.
Rule 60(b)
applies to motions seeking relief from a final judgment, order, or
proceeding. No such final judgment or order exists in this case,
as pursuant to Rule 54(b), this Court did not enter a judgment
following its ruling on the motions to dismiss. This Court did not
do so because it did not grant or deny defendant Dunn’s motion to
dismiss as it pertained to him as an individual due to his pending
bankruptcy proceeding. See ECF No. 50 *40. Therefore, this Court
construes the plaintiff’s motion as a motion for reconsideration
pursuant to Rule 54(b) and Local Rule 6.3.
3
case law in ruling that the complaint failed to state claims for
false arrest and malicious prosecution against defendant Galindo;
(6) the court should deny defendant Dunn’s motion to dismiss as the
complaint properly states § 1983 claims against him that are not
barred by res judicata; and (7) alternatively, plaintiff seeks an
order granting leave to file an amended complaint.
The plaintiff,
however, did not attach a proposed amended complaint to his motion.
Three separate responses were filed in opposition to the
plaintiff’s
Construction
pending
motion.
Corporation,
plaintiff’s pending motion.
Defendants
however,
did
Dunn
not
and
J.
respond
to
Dunn
the
First, defendant Galindo filed his
response, wherein he argues: (1) plaintiff has not satisfied his
burden of proving that the court overlooked any controlling facts
or decisions that would reasonably alter the conclusions previously
reached by the court; (2) plaintiff’s motion to amend should be
denied because the proposed additional allegations would not alter
the prior conclusion of the court; (3) plaintiff’s motion for
reargument should be denied because he has failed to allege facts
sufficient to support two of the required elements of his malicious
prosecution claim; and (4) the false arrest claim as against
Galindo must be dismissed because he never confined the plaintiff.
The Putnam County District Attorney’s Office, Kevin Wright,
and Robert Noah (collectively the “PCDA defendants”) were the next
to file their response to the plaintiff’s pending motion.
4
These
defendants argue: (1) the court did not overlook important matters
or controlling decisions in dismissing the complaint against the
PCDA defendants; and (2) the plaintiff’s application to amend the
complaint is improper and should be denied.
The Town of Carmel, the Carmel Police Department, and the
Carmel Police Officers Christopher Fox, John Doe, Detective Robert
Bagnarol, Lieutenant Brian Karst, Sergeant John Harney, Lieutenant
Michael Cazzari, and Chief Michael R. Johnson (collectively “the
Town of Carmel defendants”) then filed their response to the
plaintiff’s
motion.
These
defendants
argue:
(1)
the
court
rightfully concluded that Galindo’s civilian complaint provided
probable cause for McGee’s arrest; (2) the court did not err in
deciding that the police were entitled to qualified immunity; (3)
the court correctly applied New York law in finding that Judge
Spofford’s decision was not a favorable termination for purposes of
a malicious prosecution claim; and (4) failure to attach a proposed
amended complaint requires that the court deny the plaintiff’s
motion to amend.
After multiple extensions, the plaintiff filed a reply to the
defendants’ responses. In his reply, the plaintiff argues: (1) no
reasonable officer could have understood the Galindo complaint as
providing probable cause for arrest; (2) Noah and Wright are not
entitled to absolute immunity; (3) whether the police had qualified
immunity cannot be determined on the pleadings; (4) plaintiff’s
claims against Galindo should be reinstated; (5) the complaint
and/or proposed amended complaint sufficiently allege supervisory
5
liability
on
the
part
of
defendants
Johnson
and
Wright
and
municipal liability against the Town of Carmel and Putnam County;
and (6) the court should grant leave to file the proposed amended
complaint.
The plaintiff attached a copy of his proposed amended
complaint to his reply.
For the reasons set forth below, this Court denies, in its
entirety,
the
plaintiff’s
motion
for
reargument,
relief
from
judgment, or, in the alternative, leave to amend the complaint.
II.
A.
Applicable Law
Federal Rule of Civil Procedure 54(b)
Rule 54(b) provides in relevant part:
[A]ny order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end
the action as to any of the claims or parties and may be
revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights
and liabilities.
Fed. R. Civ. P. 54(b).
Motions under Rule 54(b) are subject to the
law of the case doctrine.
In re Rezulin Liability Litigation, 224
F.R.D. 346, 349 (S.D.N.Y. 2004).
This means that the decisions
referenced in Rule 54(b) “may not usually be changed unless there
is ‘an intervening change of controlling law, the availability of
new evidence, or the need to correct a clear error or prevent a
manifest injustice.’” Official Committee of Unsecured Creditors of
the Color Tile, Inc. v. Cooper & Lybrand, LLP, 322 F.3d 147, 167
(2d Cir. 2003) (citing Virgin Atl. Airways, Ltd. v. Nat’l Mediation
Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)).
6
This allows for
decisions to be revisited, “subject to the caveat that ‘where
litigants have once battled for the court’s decision, they should
neither be required, nor without good reason permitted, to battle
for it again.’”
Id. (citing Zdanok v. Glidden Co., 327 F.2d 944,
953 (2d Cir. 1964)).
The objective of the law of the case doctrine “include[s]
promoting efficiency and avoiding endless litigation by allowing
‘each stage of the litigation [to] build on the last and not afford
an opportunity to reargue every previous ruling.’”
Liability
Litigation,
224
F.R.D.
at
349-50
In re Rezulin
(quoting
Tri–Star
Pictures, Inc. v. Leisure Time Prod., B.V., No. 88 Civ. 9127(DNE),
1992 WL 296314, at *2 (S.D.N.Y. Oct. 6, 1992) (citation omitted)).
Therefore, without good reason “a court will ‘generally adhere to
[its]
own
earlier
litigation.’”
decision
on
a
given
issue
in
the
same
Id. at 350 (quoting Tri–Star Pictures, Inc., No. 88
Civ. 9127(DNE), 1992 WL 296314, at *2 (citation omitted)).
B.
Local Rule 6.3
Local Rule 6.3 is entitled “Motions for Reconsideration or
Reargument.”
In pertinent part, the rule provides:
“There shall
be served with the notice of motion a memorandum setting forth
concisely
the
matters
or
controlling
believes the court has overlooked.”
decisions
L.R. 6.3.
which
counsel
Therefore, the
parties may not use a motion under Rule 6.3 to “advance new facts,
issues or arguments not previously presented to the court.” Litton
7
Indus., Inc. v. Lehman Bros. Kuhn Loeb, Inc., No. 86 CIV 6447, 1989
WL 162315, at *3 (S.D.N.Y. Aug. 4, 1989) (citations omitted).
Instead, the party “must demonstrate that the Court overlooked
controlling decisions or factual matters that were put before it on
the underlying motion.”
Davis v. The Gap, Inc., 186 F.R.D. 322,
324 (S.D.N.Y. 1999) (citations omitted).
As such, “[t]he purpose
of the rule is “‘to ensure the finality of decisions and to prevent
the practice of a losing party examining a decision and then
plugging the gaps of a lost motion with additional matters.’”
Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y.
1988) (quoting Lewis v. New York Telephone, No. 83 Civ. 7129, 1986
WL 1441, at *1 (S.D.N.Y. Jan. 29, 1986)).
“Local Rule 6.3 is to be narrowly construed and strictly
applied so as to avoid repetitive arguments on issues that have
been considered fully by the court.” Id. (citations omitted). Due
to this strict application, “reconsideration will generally be
denied unless a moving party can point to matters that ‘might
reasonably be expected to alter the conclusion reached by the
court.’”
In re CRM Holdings, Ltd. Securities Litigation, No. 10
CIV 00975, 2013 WL 787970, at *3 (S.D.N.Y. Mar. 4, 2013) (quoting
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 2011)).
8
C.
Motion to Amend
Federal Rule of Civil Procedure 15(a)(1) states, in pertinent
part, that “[a] party may amend its pleading once as a matter of
course within . . . 21 days after service of a responsive pleading
or 21 days after service of a motion under Rule 12(b) . . .
whichever is earlier.”
If a party seeks to amend its pleadings in
all other cases, it may only do so “with the opposing party’s
written consent or the court’s leave. The court should freely give
leave when justice so requires.”
Rule
15(a)
grants
the
Fed. R. Civ. P. 15(a)(2).
district
court
broad
discretion
concerning motions to amend pleadings, and leave should be granted
absent some reason “such as undue delay, bad faith, or dilatory
motive
on
the
part
of
the
movant,
repeated
failure
to
cure
deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment or
futility of the amendment.”
Foman v. Davis, 371 U.S. 178, 182
(1962); see McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200
(2d Cir. 2007).
III.
A.
Discussion
Motion for Reconsideration Under Local Rule 6.3 and Federal
Rule Civil Procedure 54(b)
The plaintiff takes issue with the Court’s rulings on the
motions to dismiss of Galindo, the PCDA defendants, and the Town of
Carmel defendants. As such, this Court will proceed to address the
9
plaintiff’s arguments in that order.
The plaintiff also makes the
argument that this Court should deny defendant Dunn’s motion to
dismiss, as the complaint properly states § 1983 claims against him
that are not barred by res judicata.
This Court did not make any
rulings as to defendant Dunn, and instead stayed this case as a
result
of
defendant
Dunn’s
Chapter
7
bankruptcy
petition.
Therefore, this Court need not address the plaintiff’s arguments
for reconsideration concerning a party whose motion to dismiss is
still pending and not ruled on due to a stay.
1.
Motion to Dismiss by Defendant Galindo
The plaintiff states that this Court overlooked controlling
case law in ruling that the complaint failed to state a claim for
false arrest and malicious prosecution against defendant Galindo.
The plaintiff’s first argument pertaining to this contention is
that
the
complaint,
together
with
the
various
responses
by
defendants, raises issues of fact as to whether defendant Galindo
was a willing participant or at least acquiesced in a conspiracy to
harm the plaintiff without regard to any violation of his rights,
so as to make defendant Galindo a state actor.
Defendant Galindo
in response states that this Court correctly held that defendant is
not a state actor and, therefore, the plaintiff cannot state a
claim under 42 U.S.C. § 1983 against him.
Defendant Galindo
specifically indicates that the plaintiff did not assert that his
complaint contained allegations that supported a “meeting of the
minds” with a state actor but instead only with defendant Dunn.
10
As this Court stated in original opinion dismissing the claims
against defendant Galindo, “the key question is whether Galindo
participated in the alleged conspiracy to an extent sufficient to
‘act together with’ or ‘aid’ the government actors.”
ECF No. 50
*15 (citing Richardson v. New York City Health and Hospitals Corp.,
No. 05-CV-6278, 2009 WL 804096, at *17 (S.D.N.Y. Mar. 25, 2009)).
This Court found at that time that “[t]he complaint alleges neither
that Galindo wilfully participated in any agreement with any state
actor, nor that Galindo acted together with state officials or with
significant state aid.”
Id. at 16.
Again, this court finds that
the complaint does not contain sufficient allegations for this
Court to find that defendant Galindo’s conduct amounted to state
action.
Defendant Galindo is correct in stating that the plaintiff did
not point to any allegations in the complaint that defendant
Galindo conspired with any state actor.
Instead, the plaintiff
relies on a connection with defendant Dunn who is instead a private
party.
As such, this Court finds no clear error in its original
findings concerning defendant Galindo being a state actor, nor does
it find that it overlooked any factual matters when making its
original decision.
The plaintiff’s next argument concerning this Court’s ruling
on defendant Galindo’s motion to dismiss is that this Court erred
in dismissing the malicious prosecution claim against defendant
11
Galindo for lack of proof of malice.
Specifically, the plaintiff
argues that this Court erred in finding probable cause at this
stage, and malice can be inferred from the lack of probable cause.
Irregardless, the plaintiff contends that the complaint contains
specific
allegations
of
malice
that
the
Court
overlooked.
Defendant Galindo responds by stating that no allegations of malice
were made in the complaint. Instead, defendant Galindo states that
all such allegations were made against defendant Dunn.
One of the four elements of a malicious prosecution claim that
a plaintiff is required to prove in New York is “actual malice as
a motivation for defendant’s actions.”
Manganiello v. City of New
York, 612 F.3d 149, 161 (2d Cir. 2010).
To prove actual malice,
the plaintiff must show that the defendant “commenced the prior
criminal proceeding due to a wrong or improper motive, something
other than a desire to see the ends of justice served.”
v. Stamberg, 377 N.E.2d 975, 976 (N.Y. 1978).
Nardelli
First, as stated in
more detail below, this Court finds no clear error in its finding
of probable cause. Therefore, the plaintiff’s argument that malice
may be inferred by a lack of probable cause fails, as it did in the
original opinion.
See ECF No. 50 *20.
As to the plaintiff’s contention that this Court overlooked
specific allegations of defendant Galindo’s malice, this Court
again finds that pursuant to Rule 54(b), there is no clear error in
its finding.
None of the paragraphs of the plaintiff’s complaint
12
that he cites in his pending motion for this contention, changes
this Court’s finding that the complaint did not allege sufficient
factual allegations to support a finding of malice on the part of
defendant
Galindo.
For
instance,
the
plaintiff
points
to
paragraphs that indicate that defendant Galindo has used different
dates to describe when the plaintiff made the alleged phone call to
defendant Galindo. ECF No. 60 *41. The plaintiff states that this
shows that his statements to the police to initiate the prosecution
were just as likely to be without regard for the truth or falsity
or for the effect on the plaintiff’s rights.
Id.
This Court,
however, does not find that these paragraphs support the argument
that Galindo acted with malice, as it does not show, nor imply that
he acted with malice in making his statement to the police.
The plaintiff’s third contention, which also relates to this
Court’s dismissal of the plaintiff’s malicious prosecution claim
against defendant Galindo, is that this Court erred in finding that
the criminal proceeding against the plaintiff was not terminated on
the merits in the plaintiff’s favor.
Specifically, the plaintiff
argues that this Court erred in finding that Judge Spofford’s
decision dismissing the information against the plaintiff that
resulted from defendant Galindo’s statement was not a “termination
in the plaintiff’s favor,” so as to allow the plaintiff to bring an
action for malicious prosecution.
Court
overlooked
and
The plaintiff argues that this
misinterpreted
13
case
law
on
this
point.
Defendant Galindo responds by stating that this Court correctly
held that the criminal proceeding was not terminated on the merits
in plaintiff’s favor.
law,
dismissal
insufficient
of
to
an
meet
The defendant states that as a matter of
information
the
on
second
procedural
element
of
grounds
the
is
malicious
prosecution claim.
While one element of a malicious prosecution claim that the
plaintiff must prove is actual malice, another element is that
there was a termination of the prior proceedings in the plaintiff’s
favor.
Manganiello, 612 F.3d at 161.
This Court agrees with the
defendant and does not find any clear error in its prior holding,
nor does this Court find that it overlooked any controlling cases
or factual matters that would alter its decision.
As the Court
stated in its original opinion, “[i]n MacFawn v. Kresler, 666
N.E.2d 1359 (N.Y. 1996), the Court of Appeals of New York held that
dismissal without prejudice of the information for insufficiency
under CPL §§ 170.30(1)(a) and 170.35(1)(a) could not serve as the
basis for a malicious prosecution claim.”
case,
the
information
§ 170.30(1)(a).
was
also
ECF No. 50 *20.
dismissed
pursuant
In this
to
CPL
Therefore, based on controlling precedent, this
Court found that this dismissal could also not serve as the basis
for a malicious prosecution claim.
Id.
The plaintiff indicates that Smith-Hunter v. Harvey, 734
N.E.2d 750 (N.Y. 2000), stands for the proposition that any
14
termination of a criminal prosecution qualifies as a favorable
termination, so long as the circumstances surrounding it are not
inconsistent with innocence.
true.
This Court does not find this to be
The court in Smith-Hunter, did not overrule its finding is
MacFawn, but merely distinguished it.
The dismissal in Smith-
Hunter was a final judgment that “cannot be revived by re-filing
the accusatory instrument” while the Court indicated that the
dismissal in MacFawn, which was partially pursuant to CPL §
170.30(1)(a), was without prejudice and was, therefore, not a final
termination of the action.
734 N.E.2d at 197-98.
Therefore, as
stated above, this Court does not find that any controlling case
law was overlooked in making its decision regarding whether a
favorable termination existed.
The plaintiff’s final contention as to how this Court erred in
its holding as to defendant Galindo’s motion to dismiss is that it
erred in finding that defendant Galindo did not confine the
plaintiff because it was the police who made the decision to make
the arrest.
The plaintiff claims that the “‘break in the chain of
custody’ relied upon by the Court is illusory” and defendant
Galindo cannot hide behind the decision of the police when it was
defendant Galindo who gave a false statement to the police.
ECF
No. 60 *42 (citing Bertuglia v. City of New York, 839 F. Supp. 2d
703 (S.D.N.Y. 2012)).
Defendant Galindo argues in opposition that
he
on
cannot
be
liable
the
false
15
arrest
claim
even
if
the
information he did provide the police with was false as that does
not make him a state actor and liable under § 1983.
Chodkowski v.
City of New York, No. 06 CV 7120, 2007 WL 2717872, at *9 (S.D.N.Y.
Sept. 11, 2007) (citations omitted).
This Court finds there to be no clear error in its original
finding to justify reconsideration of its prior ruling under Rule
54(b),
nor
does
it
find
that
it
overlooked
any
controlling
decisions or factual matters to justify reconsideration under Local
Rule 6.3.
As stated, in this Court’s original opinion, even if
defendant Galindo was subject to suit under § 1983, which, as
indicated above, this Court determined he was not, the plaintiff’s
claim for false arrest against him would still fail.
In order to state a claim under § 1983 for false arrest, which
requires the use of New York law in this situation, the plaintiff
must show that there was an intentional confinement on the part of
the defendant. Merely giving information to legal authorities, who
are left entirely free to use their own judgment in effecting an
arrest, does not constitute intentional confinement.
Home, 377 F. Supp. 2d 361, 376 (S.D. N.Y. 2005).
Mitchell v.
The complaint
only alleges “that Galindo gave a statement to the police on March
27, 2007 under circumstances where he did not have the benefit of
an interpreter, where he did not fill out the complaint form
completely, and where the police then used their own independent
judgment
and
discretion
to
determine
16
whether
to
arrest
the
plaintiff.”
43).
ECF No. 50 *23 (citing Compl. ¶¶ 34, 36, 39, 40, 42,
Such allegations are not enough to show that defendant
Galindo “invoked the power of the state intentionally to cause the
plaintiff’s arrest.”
2.
Bertuglia, 839 F. Supp. 2d at 722.
Motion to Dismiss by Putnam County District Attorney’s
Office, Wright, and Noah
The
plaintiff
next
takes
issue
with
Court’s
concerning the PCDA defendants’ motion to dismiss.
findings
First, the
plaintiff alleges that because the complaint sufficiently alleges
the absence of probable cause, there are factual issues that need
to be resolved before any determination can be made as to whether
defendants Noah or Wright are entitled to absolute immunity for
their investigatory acts.
The plaintiff argues that the complaint
alleges facts about defendant Noah ignoring exculpatory information
concerning the plaintiff prior to arrest and after receiving that
information, defendant Noah still directed the police to effect the
arrest of the plaintiff. Therefore, the plaintiff argues that this
Court should have found that defendant Noah was acting in a purely
investigatory manner, for which he is not entitled to absolute
immunity because probable cause did not exist at that time.
The
plaintiff also argues that the police officers’ familiarity with
Galindo and his connection to defendant Dunn should have engendered
skepticism about his motive and reliability.
This, along with the
plaintiff’s contention that the criminal complaint lacked essential
17
allegations necessary for the crime charged, the plaintiff argues,
puts the issue of probable cause into question.
The PCDA defendants argue that first, absolute immunity is not
just predicated upon there being probable cause.
based
“upon
the
well-established
principle
Instead, it is
that
‘a
state
prosecuting attorney who acted within the scope of his duties in
initiating and pursuing a criminal prosecution is immune from the
civil suit for damages under § 1983.’”
ECF No. 69 *17 (quoting
Schmeuli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005)).
Even so, the PCDA defendants argue that probable cause did exist at
the time of arrest, and did exist as soon as defendant Galindo
filed his complaint against the plaintiff.
As this Court stated in its original opinion:
The Second Circuit has held that prosecutors are entitled
to absolute immunity for conduct intimately associated
with the judicial phase of the criminal process, but
absolute immunity will not protect acts a prosecutor
performs
in
administration
or
investigation
not
undertaken in preparation for judicial proceedings.
Hill, 45 F.3d at 661.
In attempting to draw a line between a prosecutor’s
advocacy and investigating roles, the Second Circuit has
held that a prosecutor’s conduct prior to the
establishment of probable cause should be considered
investigative. Id. (“Before any formal legal proceeding
has begun and before there is probable cause to arrest,
it follows that a prosecutor receives only qualified
immunity for his acts.”).
ECF No. 50 *26-27.
This Court agrees with the PCDA defendants
insomuch as they argue that probable cause did exist at the time of
defendant Noah’s and Wright’s actions that the plaintiff complains
18
of.
As explained in the original opinion, such actions were taken
by defendants Noah and Wright in their advocacy roles, after
probable cause existed, rather than in their investigatory roles.3
See id. at *25-30.
The plaintiff does not point to any new
evidence or intervening law that would alter this Court’s original
finding, nor does it find any clear error in its original finding.
Therefore, it denies the plaintiff’s motion under Rule 54(b).
As
to the factual allegations that the plaintiff argues this Court
overlooked
in
finding
probable
cause,
this
Court
previously
addressed those same allegations in its original opinion.
Rather
than repeat its original discussion of those allegations, this
Court directs the parties to its original opinion, ECF No. 50 *2530.
As a result, this Court finds that it did not overlook these
factual matters and denies the plaintiff’s motion under Local Rule
6.3.
The plaintiff also takes issue with this Court’s finding that
the complaint did not allege sufficient facts to support a claim
that defendants Noah and Wright were participants in the alleged
conspiracy.
The plaintiff specifically argues that this Court
overlooked that evidence of conspiracy is rarely direct, and that
inference that can be drawn from the plaintiff’s allegations are
3
The probable cause issue is further discussed below in
relation to the police officers in Section III.A.3. Further, an
extensive discussion may be found in this Court’s original opinion.
See ECF No. 50 *36-39.
19
sufficient at this stage of litigation.
Further, the plaintiff
states that this Court specifically overlooked the allegation that
defendant Dunn called the plaintiff’s attorney to inform him of the
arrest prior to it occurring. This, the plaintiff believes, raises
an issue of fact as to whether the arrest and prosecution was
pursuant to a conspiracy with defendant Dunn.
In
response,
the
PCDA
defendants
argue
that
there
are
absolutely no factual allegations supporting any inference that
either defendant Noah or Wright agreed with anyone to inflict any
type of injury upon plaintiff.
The PCDA defendants state that
Dunn’s alleged call to the plaintiff’s former attorney before his
arrest to inform him of such arrest has no bearing on defendant
Noah’s and Wright’s involvement in a conspiracy with defendant
Dunn.
As stated in this Court’s original opinion:
[t]o prove a § 1983 conspiracy, a plaintiff must show:
(1) an agreement between two or more state actors or
between a state actor and a private entity; (2) to act in
concert to inflict an unconstitutional injury; and (3) an
overt act done in furtherance of that goal causing
damages.
ECF No. 50 *30-31 (quoting Pangburn v. Culbertson, 200 F.3d 65, 72
(2d Cir. 1999)).
This Court agrees with the PCDA defendants in
that the phone call from defendant Dunn does not support an
inference that defendants Wright or Noah agreed with defendant Dunn
or anyone to inflict any type of injury upon the plaintiff.
20
As to
the other factual allegations that the plaintiff claims this Court
overlooks, this Court also finds that those allegations do not
support such an inference either.
There was no clear error in the
Court’s original finding on this matter, nor did this Court
overlook any factual matters or controlling decisions that would
alter the conclusion of this Court.
Therefore, this Court denies
the plaintiff’s pending motion under Rule 54(b) and Local Rule 6.3
as to its finding that defendant Wright and Noah were not involved
in a conspiracy with defendant Dunn.4
3.
Police
Motion to Dismiss by Town of Carmel, Town of Carmel
Department,
Town
of
Carmel
Police
Officers
Fox,
Doe,
Bagnarol, Karst, Harney, Cazzari, and Johnson
The plaintiff next argues that this Court erred in granting
the Town of Carmel defendants’ motion to dismiss as to the police
officers.
Specifically, the plaintiff contends that this Court
erred in deciding that the police officers were entitled to
qualified
immunity
litigation.
at
the
motion
to
dismiss
stage
of
this
In support of this contention, the plaintiff argues
that it was unreasonable for the police officers to rely on
4
As to plaintiff’s argument concerning Wright and a possible
claim for negligent supervision, the plaintiff stated that this
Court “correctly point[ed] out that plaintiff did not allege
negligent supervision.”
ECF No. 60 *24-25.
Therefore, the
plaintiff stated that he was seeking leaving to amend his complaint
to add such allegations. This Court, however, need not address
such argument for negligent supervision because as indicated below,
this Court does not grant the plaintiff such leave.
21
defendant Galindo’s statement in arresting the plaintiff due to the
officers’ familiarity with defendant Galindo and his connection to
defendant Dunn. The plaintiff cites what he believes is supporting
case law for this proposition.
Further, the plaintiff argues that
defendant Galindo’s statement lacked allegations necessary to form
the foundation for a reasonable belief that the plaintiff had
committed a crime.
In response to this contention, the Town of Carmel defendants
first state that the plaintiff’s pending motion “does not speak to
the four corners of the complaint, recites double and triple
hearsay, and references copious facts and inferences and material
not part of the [c]omplaint.”
ECF No. 71 *6.
Further, they
respond by arguing that the officers’ familiarity with defendant
Galindo and his connection to defendant Dunn is irrelevant and
further,
the
allegations.
criminal
complaint
contained
the
essential
The defendants then cite this Court’s original
opinion and state that the Court did not err in deciding that the
police officers were entitled to qualified immunity.
As explained by this Court in its original opinion:
Qualified immunity will shield an officer from civil
liability under § 1983 if either: (1) his conduct did not
violate clearly established rights of which a reasonable
person would have known; or (2) it was objectively
reasonable for him to believe that his acts did not
violate these clearly established rights.
ECF No. 50 *36-37. (citing Amore v. Novarro, 624 F.3d 522, 530 (2d
Cir. 2010); see also Taravella v. Town of Wolcott, 599 F.3d 129,
22
134 (2d Cir. 2010) (“Even where the law is ‘clearly established’
and the scope of an official’s permissible conduct is ‘clearly
defined,’ the qualified immunity defense also protects an official
if it was ‘objectively reasonable’ for him at the time of the
challenged action to believe his acts were lawful.”)).
Further,
“[q]ualified immunity is generally extended to an officer for an
arrest made pursuant to a statute that is ‘on the books,’ so long
as the arrest was based on probable cause that the statute was
violated.”
ECF No. 50 *37 (citing Connecticut ex rel. Blumenthal
v. Crotty, 346 F.3d 84, 105 (2d Cir. 2003) (“Officials charged with
enforcing a statute on the books . . . are generally entitled to
rely on the presumption that all relevant legal and constitutional
issues have been considered and that the statute is valid.”);
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (“The existence of
probable
cause
to
arrest
constitutes
justification
and
is
a
complete defense to an action for false arrest, whether that action
is brought under state law or under § 1983.”)).
Rather than repeating this Court’s earlier findings, this
Court directs the parties to pages 37-39 of this court’s original
opinion, wherein it found probable cause existed for the police
officers’ finding that the statute involved was violated based on
Galindo’s statement and, as a result, the officer were entitled to
qualified immunity for their actions. See ECF No. 50 *37-39. This
Court did consider in its original opinion, whether based on
23
Galindo’s statement, the police officers could interpret defendant
Galindo’s complaint to make out the crime of witness tampering.
Id. at *38-39.
This Court does not find that it overlooked any
factual matters that would alter this finding.
arguments
regarding
the
criminal
complaint
The plaintiff’s
lacking
essential
elements, and thus, not providing probable cause for the arrest
because defendant Galindo did not specifically state that he was a
witness in a judicial proceeding involving the plaintiff are
unavailing, as the statement provided sufficient indications that
defendant Galindo was to be a witness, and was being threatened
regarding such testimony.
Further, the case law that the plaintiff cites in support of
the argument that the police officers’ familiarity with defendant
Galindo and his connection to defendant Dunn should have engendered
skepticism
adequate
and
thus,
probable
his
cause
statement
for
the
should
not
have
plaintiff’s
provided
arrest,
is
distinguishable from the situation that occurred in this case.
Specifically, the plaintiff discusses Radvansky v. Olmsted Falls,
395 F.3d 291 (6th Cir. 2005), which dealt with a landlord/tenant
situation. As stated in that opinion, “[s]everal courts, including
[the Sixth Circuit], have noted the unreasonableness of police
action predicated solely on a landlord’s allegations against a
tenant.”
395
F.3d
at
304.
There
is
no
landlord/tenant
relationship involved in this case, nor is similar relationship
24
alleged.
The only allegations involving the relationship between
the parties are that the police officers knew defendant Galindo and
knew his relationship to defendant Dunn.
Such knowledge and
attenuated relationship does not equate to that of a relationship
between a landlord and tenant.
Also, this Court notes that it did
not overlook the decision of Bullard v. City of New York, 240 F.
Supp. 2d 292 (S.D.N.Y. 2003).
Again, the indicia of unreliability
involved in that case does not equate to that alleged in the
situation this Court is presented with.
Because
controlling
this
law
Court
or
finds
factual
that
it
allegations
did
not
that
overlook
would
alter
any
its
findings, the plaintiff’s motion for reconsideration under Local
Rule 6.3 is denied as the Town of Carmel defendants’ motion to
dismiss.
Further, this Court does not find any clear error in its
original opinion concerning this motion, nor does it find any other
reason to constitute reconsideration of its original opinion as to
this motion under Rule 54(b).
Also, regarding the Town of Carmel defendants’ motion to
dismiss, the plaintiff also argued that this Court erred in
dismissing the claims against the defendant John Doe, who is
alleged
to
Specifically,
be
a
the
police
plaintiff
officer
stated
for
that
the
this
Town
of
Court
Carmel.
erred
in
dismissing the claims against defendant Doe as insufficient due to
the plaintiff not showing good cause for his failure to identify
25
and serve the defendant.
The plaintiff states that he has sent
numerous Freedom of Information Law (“FOIL”) requests to the Town
of Carmel Police Department seeking all documents pertaining to the
plaintiff’s request, yet the department still has not revealed the
name of police officer whom the plaintiff is referring to in the
complaint.
Due to such requests, the plaintiff argues he did have
good cause for not identifying defendant Doe.
Therefore, because
the plaintiff seeks to reinstate his claims against all other
police officer defendants through his pending motion, he requests
that defendant Doe also be reinstated.
As this Court is not
reinstating the claims against the other defendant officers as
stated above, it need not address the issue of whether the Court
should alter its findings regarding whether the plaintiff had good
cause for not identifying and serving defendant Doe, as he is
subject
to
the
same
qualified
immunity
as
the
other
police
officers.
B.
Motion to Amend
In addition to asking this Court to grant his motion for
reconsideration, the plaintiff also requests that this Court allow
him leave to amend his complaint.
In plaintiff’s memorandum in
support of his pending motion, the only argument he provides as to
why the motion to amend should be granted is that “[t]here is no
reason to deny leave to amend.”
ECF No. 60 *47.
In this
memorandum, the plaintiff lists certain proposed allegations that
26
he wishes to include in his amended complaint, however, the
plaintiff did not attach an actual proposed amended complaint for
this Court’s or the defendants’ review.
The plaintiff did not
provide such proposed amended complaint until he filed his reply
memorandum.
The defendants responded to the plaintiff’s request to amend
his
complaint
with
various
arguments.
The
Town
of
Carmel
defendants argued that none of the additional proposed allegations
offered in the plaintiff’s memorandum in support of the motion will
have any relevance in causing this Court to alter its original
opinion as such allegations are irrelevant, immaterial, and or no
consequence to establishing any of the plaintiff’s claims.
As to
any additional claims against Putnam County, they argue such claims
are time barred.
The PCDA defendants, as well as defendant
Galindo, take issue with the plaintiff’s failure to attach a
proposed amended complaint to the pending motion, and further agree
that any amendments based on the proposed allegations offered in
the plaintiff’s memorandum of his pending motion would be futile.
The
defendants
did
not
file
any
surreplies
following
the
plaintiff’s attachment of his complaint to the reply memorandum.
As this Court noted above, a party may amend its complaint
once as a matter of course within 21 days after being served with
a motion under Rule 12(b).
Fed. R. Civ. P. 15(a)(1).
Otherwise,
to amend the complaint, the party must obtain the opposing party’s
27
written consent or obtain leave from the court.
Fed. R. Civ. P.
15(a)(2). The court should grant leave absent some reason “such as
undue delay, bad faith, or dilatory motive on the part of the
movant,
repeated
failure
to
cure
deficiencies
by
amendments
previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment or futility of the amendment.”
Foman, 371 U.S. at 182; see McCarthy, 482 F.3d at 200.
Generally, mere delay, without a showing of bad faith or
prejudice on the part of the plaintiff, does not constitute a basis
for denying a motion to amend the complaint.
State Teachers
Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981).
However, after “‘a considerable period of time has passed between
the filing of the complaint and the motion to amend, courts have
placed the burden upon the movant to show some valid reason for his
neglect and delay.’”
Sanders v. Thrall Car Mfg. Co., 582 F. Supp.
945, 952 (S.D.N.Y. 1983) (quoting Hayes v. New England Millwork
Distributors, Inc., 602 F.2d 15, 19-20 (1st Cir. 1979) (internal
quotations omitted); see State Farm Mut. Auto Ins. Co. v. CPT
Medical Services, P.C., 246 F.R.D. 143, 147 (E.D.N.Y. 2007).
This Court does not find that the plaintiff has proffered a
valid reason for his delay and neglect in filing his motion to
amend. The plaintiff filed his original complaint on July 7, 2009.
Thereafter the defendants filed motions to dismiss, which were
fully briefed by January 2010.
After delay resulting from this
28
case being transferred to the undersigned judge almost a year after
the motions were filed, this Court ruled on the motions in February
2012.
Subsequently, after this Court granted the plaintiff two
separate
extensions,
the
plaintiff
filed
this
pending
motion
seeking reconsideration and leave to amend his complaint in April
2012. As mentioned above, the plaintiff did not attach his amended
complaint to his memorandum supporting this motion, but merely
included a bullet-pointed list of proposed allegations that he
would like to include.
It was not until the plaintiff filed his
reply memorandum in support of the pending motion that he attached
the proposed amended complaint.
The Court notes that, after
multiple requests for extensions, the plaintiff’s reply memorandum
was not filed until August 2012 -- roughly three years after the
plaintiff filed his initial complaint.
The plaintiff did not provide any reason for the three-year
delay in seeking leave to amend.
Instead, the plaintiff states
that if this Court denies the motion for reconsideration, he then
seeks leave to amend the complaint to add factual allegations that
support current and additional claims.
The plaintiff does state
that he believes “[t]here is no reason to deny leave to amend: no
bad faith, undue delay, or prejudice to the defendants.”
60 *47.
ECF No.
Such an statement does not satisfy the plaintiff’s burden
of explaining to this Court why there was such a delay.
29
In plaintiff’s reply memorandum in support of his pending
motion, the plaintiff asserts that he is “timely” seeking leave of
this Court, yet still does not provide an explanation of the reason
for his delay.
glean
from
The only possible explanation that this Court can
the
reply
memorandum
concerning
the
amendments
pertaining to the plaintiff’s conspiracy claim is that new evidence
was obtained during the past three years that provides additional
support for the plaintiff’s conspiracy claim.
43.
See ECF No. 60 *42-
The plaintiff, however, does not provide any dates as to when
such evidence was received, but only states that it was received in
response to FOIL requests.
This Court cannot determine when such
evidence was received so as to determine if the motion was made in
a timely manner thereafter.
Therefore, this explanation does not
meet the plaintiff’s burden of explaining to this Court why there
was a three-year delay in seeking leave to amend his complaint.
As
to
plaintiff
adding
an
additional
party
and
claims
regarding that party, the plaintiff states in his reply memorandum
that he wanted to move to amend his complaint as early as August
2010 to include Putnam County, but his counsel advised against
this.
The plaintiff seems to indicate that his counsel wished to
wait until after a ruling was made on the motions to dismiss.
He
states that the judge previously assigned to this case had assured
a quick decision.
the
plaintiff’s
See ECF No. 45.
belief
that
a
30
This Court does not find that
quick
decision
would
be
made
regarding the motions to dismiss satisfies the plaintiff’s burden
in explaining the reason for the delay. If the plaintiff wished to
add Putnam County in August 2010, the plaintiff should have filed
his motion to amend at that time, rather than waiting for two
additional years to do so.
This Court, however, need not base the denial of plaintiff’s
motion to amend solely on the fact that he did not meet his burden
to explain the delay because, as indicated by defendant Galindo and
the PCDA defendants, not attaching the amended complaint to the
motion to amend prejudiced the defendants.
“To obtain leave of
court to amend the complaint, a party should file both a Rule 15
motion and a proposed amendment or new pleading.”
Gulley v.
Dzurenda, 264 F.R.D. 34, 36 (D. Conn. 2010) (citing 3 James Wm.
Moore et al., Moore’s Federal Practice ¶ 15.17[1] (3d ed. 2004));
defendants may be prejudiced by the plaintiff failing to attach the
proposed amended complaint to the motion to amend.
American
Tissue, Inc. v. Donaldson, Lufkin & Janrette Securities Corp., 233
F.R.D. 327, 329 (S.D.N.Y. 2005). In American Tissue, the plaintiff
failed to attach the amended complaint to its motion to amend, but
the plaintiff later attached it to the reply brief.
Id.
The court
found that the defendant was prejudiced by such action because it
“no longer had a proper opportunity to address the complaint.” Id.
As in American Tissue, the plaintiff here failed to attach the
amended complaint until he filed his reply memorandum.
31
Such an
error resulted in the defendants not having an adequate opportunity
to
fully
address
defendants.
the
amendments,
therefore,
prejudicing
the
While such prejudice is not overwhelming, “the longer
the period of an unexplained delay, the less will be required of
the nonmoving party in terms of a showing of prejudice.”
Block v.
First Blood Assocs., 988 F.2d 344, 350 (2d Cir.1993) (quoting Evans
v. Syracuse City Sch. Dist., 704 F.2d 44, 47 (2d Cir. 1983)).
Thus, based on this prejudice and the lack of an explanation for
the lengthy delay in filing for leave to amend, this Court denies
plaintiff’s request for leave to amend his complaint.
IV.
Conclusion
For the reasons stated above, the plaintiff’s motion for
reargument, relief from judgment or, in the alternative, leave to
amend the complaint (ECF No. 61) is hereby DENIED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
April 16, 2013
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
32
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