McClean v. Westchester County et al
Filing
37
OPINION & ORDER re: 31 MOTION to Dismiss the Amended Complaint filed by David Clarke, Gregory Addison, Vincent Manzione, Marecia Baltimore, Brent Gamble, Daniel Ibanez, City of Mount Vernon, 27 MOTION to Dismiss the Am ended Complaint filed by Westchester County, Jean Prisco. For the reasons stated above, the motions to dismiss of the City Defendants and the County Defendants are granted. Claims One through Nine are dismissed with prejudice, and claims Ten t hrough Thirteen are dismissed without prejudice. The Clerk of Court is respectfully directed to terminate the pending motions, (Docs. 27, 31), and close the case. SO ORDERED. (Signed by Judge Cathy Seibel on 12/3/2018) (mml) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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RAHSI McCLEAN,
Plaintiff,
OPINION & ORDER
-against17-CV-4492 (CS)
THE COUNTY OF WESTCHESTER, THE CITY OF
MOUNT VERNON, FORMER MOUNT VERNON
POLICE DETECTIVE, DANIEL IBANEZ, MOUNT
VERNON POLICE DETECTIVES BRENT GAMBLE,
DAVID CLARKE, FORMER MOUNT VERNON LT.
VINCENT MANZIONE, and MOUNT VERNON SGT
GREGORY ADDISON, in their individual and official
capacity, INVESTIGATOR MARECIA BALTIMORE,
in her individual and official capacity, as a FORMER
MOUNT VERNON POLICE DETECTIVE and an
(Investigator) of the Westchester County District
Attorney’s Office, and ASSISTANT DISTRICT
ATTORNEY JEAN PRISCO in her official capacity as
a WESTCHESTER COUNTY ASSISTANT DISTRICT
ATTORNEY,
Defendants.
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Appearances:
Pamela D. Hayes
Law Office of Pamela D. Hayes, Esquire
New York, New York
Counsel for Plaintiff
Justin R. Adin
Westchester County Attorney’s Office
White Plains, New York
Counsel for the County Defendants
Andrew C. Quinn
Steven J. Bushnell
The Quinn Law Firm, PLLC
White Plains, New York
Counsel for the City Defendants
1
Seibel, J.
Before the Court are the motions to dismiss of Defendants Westchester County and
Assistant District Attorney (“ADA”) Jean Prisco (collectively the “County Defendants”), (Doc.
27), and Defendants the City of Mount Vernon, Former Detective Daniel Ibanez, Detective Brent
Gamble, Detective David Clarke, Former Lieutenant Vincent Manzione, Sergeant Gregory
Addison, and Former Detective Marecia Baltimore (collectively the “City Defendants”), (Doc.
31).
I.
BACKGROUND
I accept as true the facts, but not the conclusions, set forth in Plaintiff’s Amended
Complaint. (Doc. 20 (“AC”).)
A.
Facts
On August 8, 2011, at 9:40 p.m., there was a shooting on South 12th Avenue between
Second and Third Streets in the City of Mount Vernon, New York. (Id. ¶ 15.) Two individuals –
Gloria Nartey and Clifton Wells – were shot. (See id.) Although Wells survived the shooting,
Nartey never regained consciousness and was pronounced dead at the hospital. (Id. ¶¶ 15, 17.)
The next day, officers of the Mount Vernon Police Department (“MVPD”) interviewed
Wells at Montefiore and Jacobi Hospitals and later at the MVPD lockup.1 (Id. ¶ 16.) Wells
reported he and three other people – Ricky Young, Antoinette “AJ” Brown, and Jasmine Smith –
were outside smoking marijuana in front of a house before the shooting occurred. (See id. ¶¶ 16,
24, 39; Doc. 32 (“City Ds’ Mem.”) at 3.) He further told the police that it was dark, that he ran
from the scene, and that he did not see who shot him. (AC ¶ 16.)
1
After Wells was released from the hospital, he was taken to the MVPD and was arraigned at the Mount Vernon
Municipal Court on an outstanding warrant. (AC ¶ 16.)
2
That same day, MVPD Lieutenant Manzione assigned Detectives Baltimore and Ibanez
to retrieve video tapes from 70 West Third Street and 109 South 12th Avenue. (Id. ¶ 19.) While
the detectives retrieved the tapes and viewed them with Manzione and Clarke,2 the tapes were
not vouchered or secured for safekeeping. (Id.) Detectives Baltimore and Addison were directed
to return to 70 West Third Street for additional footage. (Id. ¶ 20.) Although the detectives
retrieved additional tapes, they did not voucher or preserve them. (Id.) In all, at least three sets
of tapes were not vouchered or preserved. (Id. ¶ 23.)
As of August 9, 2011, MVPD officers had canvassed the area where the shooting
occurred and obtained several descriptions of the shooter. (Id. ¶ 21.) They also interviewed two
witnesses, Brown and Smith, (id. ¶ 24), but no one identified or said they recognized the shooter,
(id. ¶¶ 21, 24). Six days later, Smith told an MVPD officer that the shooter was Plaintiff and that
she was afraid to make the identification. (Id. ¶ 25.) At that time, Smith had outstanding bench
warrants and open cases. (Id.)
On September 30 and October 1, 2012, Detectives Gamble and Clarke traveled to South
Carolina to interview Wells. (Id. ¶ 26.) Gamble brought a photo array, which included a picture
of Plaintiff, while Clarke brought pictures of other individuals. (Id.) The interview was recorded
by South Carolina authorities. (Id. ¶ 27; see Doc. 20-11.) Wells told the detectives that he
thought he saw “Zimmy” – a nickname for Plaintiff, (Doc. 20-8 at 1; Doc. 20-9 at 2) – before the
shooting when Wells was walking around the neighborhood. (Doc. 20-11 at 5:16-17.) He
further reported that the shooter was “a dude with a hoodie,” (id. at 8:8-23), and that Wells ran
The Court presumes that all references in the AC to “Detective Clark” are references to Defendant Clarke given
the similarity of the names and the City Defendants’ seeming acceptance that the allegations pertain to Defendant
Clarke. (See City Ds’ Mem. at 5-6.) The Court notes, however, that Plaintiff references a “Detective Neil Clark” in
one of his opposition briefs, (Doc. 36 (“P’s County Ds’ Opp.”) at 2), so the misspelling in the AC is particularly
careless.
2
3
from the scene after he was shot, (see, e.g., id. at 10:4-13). Wells also told the detectives that at
some point after the shooting, his cousins and other people told him that “Zimmy” had shot him
and was sorry for what happened. (Id. at 15:6-15; see AC ¶ 27.) He also informed the detectives
that he had seen Plaintiff since the shooting and that Plaintiff would not look at him. (Doc. 2011 at 15:15-17.) At some point after Wells provided his account, Detective Gamble showed
Wells a photo array, pointed to Plaintiff’s picture, and told Wells to “write [his] initials there.”
(AC ¶ 27.)3 Wells then asked, “[C]an I write that’s the one who supposed to have shot me?”
(Id.) Wells wrote a statement to that effect on the photo array as Detective Gamble continued to
point to Plaintiff’s picture. (Id.)
In 2013, Detectives Gamble and Clarke asked their supervisor, Lieutenant Manzione,
what they should do with the photo array, the other pictures, and the video tape (presumably of
the interview, but the AC does not make that clear). (Id. ¶ 28.) According to Clarke, Manzione
replied, “[D]on’t lose it and don’t do anything with it,” which Plaintiff alleges constitutes a
violation of MVPD rules and regulations. (Id.) At some point prior to Plaintiff’s subsequent
criminal trial arising from the August 8, 2011 incident, the original array was lost and was not
presented to the Court, although a photocopy of the photo array exists. (Id. ¶¶ 27 n.3, 28.)
On December 2, 2013, MVPD Detective Christopher DiMase interviewed Tyshawn
(“Cali”) Burroughs, who, despite previously stating that he had no knowledge of the shooting,
reported that he was a witness and that Plaintiff was the shooter. (See id. ¶ 45; Doc. 20-8.) In
his report dated December 5, 2013, DiMase noted several inconsistencies in Burroughs’s account
3
The exhibit attached to the AC is sixteen pages of a transcript of the Wells interview. The alleged conversation
concerning that identification is not captured within those sixteen pages, and the transcript appears incomplete,
given that the portion provided does not contain the conversation alleged to have taken place regarding the
identification and because the end of the transcript lacks the common niceties associated with the conclusion of an
interview. Thus, there is a reasonable inference that the identification occurred later on during the interview, after
Plaintiff informed the detectives that he saw Plaintiff on the night of the shooting and heard that Plaintiff was the
shooter.
4
and that Burroughs admitted to telling DiMase what he wanted to hear so that DiMase would
help Burroughs get out of two outstanding warrants. (AC ¶ 48; Doc. 20-8.) When DiMase
turned in his report, ADA Prisco of the Westchester County District Attorney’s Office told
DiMase not to put his opinion in his reports. (AC ¶¶ 46-47.)
On or about April 7, 2016, ADA Prisco filed a material witness application for Burroughs
to procure his grand jury testimony. (Doc. 20-9.) When Plaintiff’s counsel requested a copy of
that application, ADA Prisco initially produced a redacted copy of the affidavit and did not
produce an unredacted version until trial. (AC ¶¶ 51-52.) Plaintiff likewise did not receive a
copy of DiMase’s December 5, 2013 report until trial and asserts that it should have been
produced when Plaintiff demanded it in an omnibus motion. (Id. ¶ 49.)
Testimony was presented to a grand jury, (see id. ¶ 48), Plaintiff was indicted for the
shooting, and the case proceeded to a jury trial beginning in April 2017, (see id. ¶ 52).4 ADA
Prisco turned over unredacted copies of material witness applications during the trial, but
Plaintiff alleges, without further explanation, that by that time “it was too late.” (AC ¶ 52.) He
further asserts that ADA Prisco admitted in her closing argument that the City of Mount Vernon
and its police officers were liable for losing evidence when she stated, among other things, that
their actions were “inexcusable” and that disciplinary action should be taken. (Id. ¶¶ 53, 62;
Doc. 20-12 at 34:22-36:7.)
4
Although Plaintiff does not explicitly allege in his AC that he was indicted by a grand jury, he references the
grand jury proceedings, (see AC ¶ 48; see also Doc. 20-9 (application for Material Witness Order to secure
attendance of Burroughs before grand jury)), and the subsequent trial, (see AC ¶ 52, Doc. 20-1), and murder charges
can only be brought by indictment, (see N.Y. Const. art. I, § 6; N.Y. Crim. Pro. Law § 195.10(1)(b)), so he must
have been indicted. Plaintiff concedes as much. (See P’s City Opp. at 2, 9.)
5
On or about May 16, 2017, the jury rendered a verdict of not guilty, (AC at 36 n.1), and
the court ordered that the matter be sealed pursuant to New York Criminal Procedure Law
§ 160.50, (Doc. 20-1).
B.
Procedural History
Plaintiff commenced the instant action on June 14, 2017, asserting claims under 42
U.S.C. §§ 1983 and 1988 against Westchester County; Anthony Scarpino, the District Attorney
for Westchester County; the City of Mount Vernon; Ibanez; Gamble; Clarke; Manzione;
Addison; and Baltimore. (Doc. 1.) A pre-motion conference was held on September 11, 2017,
at which time the parties and the Court discussed Defendants’ anticipated motions to dismiss.
(Minute Entry dated Sept. 11, 2017.) At that conference, the Court granted Plaintiff leave to file
an amended complaint, (id.), which Plaintiff filed on November 13, 2017, (Doc. 18). The
Amended Complaint removes Scarpino as a defendant, adds ADA Prisco, and asserts the
following claims: (1) deprivation of civil rights under 42 U.S.C. § 1983; (2) false arrest and false
imprisonment; (3) malicious prosecution; (4) malicious abuse of process; (5) denial of the right
to a fair trial; (6) § 1983 conspiracy; (7) failure to intervene; (8) municipal liability; (9) negligent
hiring, retention, supervision, and training; (10) malicious prosecution in violation of New York
law; (11) negligent infliction of emotional distress in violation of New York law; (12) negligent
hiring, supervision, and retention in violation of New York law; and (13) negligent training and
supervision in violation of New York law. (AC at 1; id. ¶¶ 64-152.) All claims seem to be
advanced against all Defendants.
On April 18, 2018, Defendants filed their bundled motion papers, including the County
Defendants’ motion to dismiss, (Doc. 27), and memorandum of law in support of that motion,
(Doc. 28 (“County Ds’ Mem.”)); the City Defendants’ motion to dismiss, (Doc. 31), and
6
memorandum of law in support of that motion, (City Ds’ Mem.); the County Defendants’ reply,
(Doc. 30); and the City Defendants’ reply, (Doc. 34). Plaintiff filed his opposition briefs on
November 8 and 9, 2018, (Doc. 35 (“P’s City Opp.”); Doc. 36 (“P’s County Opp.”)), although
hard copies of both briefs were provided to the Court well before that date.
II.
LEGAL STANDARDS
A.
Motion to Dismiss
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. “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 entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555 (alteration, citations, and internal quotation marks
omitted). While Federal Rule of Civil Procedure 8 “marks a notable and generous departure
from the hyper-technical, code-pleading regime of a prior era, . . . it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79.
In considering whether a complaint states a claim upon which relief can be granted, the
court “begin[s] by identifying pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth,” and then determines whether the remaining well-pleaded
factual allegations, accepted as true, “plausibly give rise to an entitlement to relief.” Id. at 679.
Deciding whether a complaint states a plausible claim for relief is “a context-specific task that
7
requires the reviewing court to draw on its judicial experience and common sense.” Id.
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not ‘shown’ – ‘that the pleader is entitled to
relief.’” Id. (alteration omitted) (quoting Fed. R. Civ. P. 8(a)(2)).5
B.
Documents Properly Considered
When deciding a motion to dismiss, a court is entitled to consider:
(1) facts alleged in the complaint and documents attached to it or
incorporated in it by reference, (2) documents “integral” to the
complaint and relied upon in it, even if not attached or incorporated
by reference, (3) documents or information contained in defendant’s
motion papers if plaintiff has knowledge or possession of the
material and relied on it in framing the complaint . . . , and (5) facts
of which judicial notice may properly be taken under Rule 201 of
the Federal Rules of Evidence.
Weiss v. Inc. Vill. of Sag Harbor, 762 F. Supp. 2d 560, 567 (E.D.N.Y. 2011) (internal quotation
marks omitted). To be incorporated by reference, the complaint must make “a clear, definite and
substantial reference to the documents.” DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 60
(S.D.N.Y. 2010) (internal quotation marks omitted). “A document is integral to the complaint
where the complaint relies heavily upon its terms and effect. Merely mentioning a document in
the complaint will not satisfy this standard; indeed, even offering limited quotation[s] from the
document is not enough.” Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (alteration in
original) (citation and internal quotation marks omitted).
I may consider the exhibits attached to Plaintiff’s AC: (1) a certification of acquittal
dated May 16, 2017, (Doc. 20-1); (2) Plaintiff’s initial complaint dated May 31, 2017, (Doc. 20-
5
In his opposition briefs, Plaintiff repeatedly faults Defendants for citing cases addressing motions for summary
judgment. (See, e.g., P’s City Opp. at 12; P’s County Opp. at 12.) Although the legal standards governing motions
for summary judgment and motions to dismiss differ, Defendants rely on summary-judgment decisions merely to
recite the elements of the claims, the plausibility of which the Court is to assess. Accordingly, Plaintiff’s attempts to
distinguish those cases solely on the basis that they are summary-judgment decisions is unavailing.
8
2); (3) excerpts from the MVPD Department Manual, (Doc. 20-3); (4) complaints filed in two
other lawsuits against the City of Mount Vernon, Ibanez, and others, (Docs. 20-4, 20-5, 20-6);
(5) a list of cases in which Plaintiff asserts courts have found violations of constitutional rights,
based on facts similar to those alleged by Plaintiff, on the part of prosecutors or police officers
(most of whom are not identified in the decisions cited, and none of whom who are identified are
Defendants in this action), (Doc. 20-7); (6) DiMase’s report dated December 5, 2013 concerning
his interview of Burroughs, (Doc. 20-8); (7) redacted and unredacted versions of ADA Prisco’s
April 7, 2016 material witness application concerning Burroughs, (Doc. 20-9); (8) a copy of a
photo array in which Plaintiff alleges that “Clifton Wells [i]dentified Plaintiff,” (AC at 20; Doc.
20-10); (9) an excerpt of the transcript of the October 1, 2012 audio recorded interview of Wells,
(Doc. 20-11); (10) transcript excerpts from the underlying criminal case, including portions of
sworn witness testimony and ADA Prisco’s summation, (Doc. 20-12); and (11) an April 25,
2017 letter from ADA Prisco to Plaintiff’s counsel and another attorney concerning statements
made by Young and an excerpt of ADA Prisco’s examination of Young at an unspecified
proceeding, (Doc. 20-13).
The Court notes, however, that the exhibits attached to Plaintiff’s AC total over 150
pages. Some of the exhibits are not cited in the paragraphs of the AC, while others are
referenced generally and without any pincites. “While the Federal Rules of Civil Procedure do
not categorically bar the practice of attaching exhibits to a complaint,” United States v. Int’l
Longshoremen’s Ass’n, 518 F. Supp. 2d 422, 466 n.78 (E.D.N.Y. 2007), the Court is under no
obligation to scour the exhibits attached to a complaint “with no guidance as to which specific
allegations are intended to be deemed incorporated,” id. at 466; see Cleveland v. Breslin, No. 97CV-486, 1997 WL 275101, at *2 (N.D.N.Y. May 16, 1997) (“Plaintiff may, of course, attach
9
exhibits to his amended complaint, however, the Court will not independently examine exhibits
that [he] does not specifically reference (by the exhibit’s page number) in his amended
complaint.”). This is particularly true where, as here, the plaintiff is represented by counsel.
The County Defendants attached seven exhibits to the declaration of their counsel (Doc.
29 (“Adin Decl.”)): (1) a transcript dated September 27, 2017 of an examination of Plaintiff
pursuant New York General Municipal Law § 50-h, (id. Ex. 1); (2) the Notice of Claim that
Plaintiff served on the County of Westchester, (id. Ex. A); (3) the Demand for Examination
served by the County on Plaintiff, (id. Ex. B); (4) a September 20, 2017 letter from the County
Defendants’ counsel to Plaintiff’s counsel, (id. Ex. C); (5) a September 22, 2017 letter from
Plaintiff’s counsel to counsel for the County Defendants, (id. Ex. D); (6) a September 6, 2017
letter from the County Defendants’ counsel to Plaintiff’s counsel, (id. Ex. E); and (7) a
September 22, 2017 letter from the County Defendants’ counsel to Plaintiff’s counsel, (id. Ex.
F).
The City Defendants attached fifteen exhibits to the declaration of their counsel, (Doc. 33
(“Bushnell Decl.”)): (1) a copy of Plaintiff’s AC, excluding the exhibits, (id. Ex. A); (2) the
Molineux/Ventmiglia Application of the Westchester County District Attorney’s Office in the
underlying criminal proceeding, (id. Ex. B); (3) the Westchester County Court Judge’s May 4,
2017 “Decision After Hearing” on the prosecution’s Sirois motion in the underlying criminal
case, (id. Ex. C); (4) portions of transcripts from pre-trial hearings in the underlying criminal
action, (id. Ex. D); (5) excerpts of transcripts from the trial in the underlying criminal case, (id.
Ex. E); (6) the indictment in the underlying criminal case, (id. Ex. F); (7) the transcript of the
Westchester County Court Judge’s decision denying Plaintiff’s motion for a Trial Order of
Dismissal in the underlying criminal action, (id. Ex. G); (8) an MVPD Incident Report dated
10
August 8, 2011, (id. Ex. H); (9) an MVPD Supplementary Report dated August 12, 2011
concerning the Wells interview at Jacobi Medical Center, (id. Ex. I); (10) Wells’s statement to
the MVPD dated August 8, 2011, (id. Ex. J); (11) Smith’s statement to the MVPD dated August
9, 2011, (id. Ex. K); (12) Smith’s statement to the MVPD dated August 15, 2011, (id. Ex. L);
(13) Brown’s statement to the MVPD dated August 9, 2011, (id. Ex. M); (14) an MVPD
supplemental report dated May 13, 2013 concerning the Wells interview in South Carolina, (id.
Ex. N); and (15) Jason Dulyx’s statement to the Criminal Investigation Unit of the Westchester
County District Attorney’s Office dated November 13, 2015, (id. Ex. O).
The Court need not determine whether Defendants’ exhibits are properly considered in
deciding the instant motion because, aside from the AC (which is, of course, properly
considered), the documents submitted have no bearing on the Court’s analysis.6
III.
DISCUSSION
A.
Rule 8
Rule 8(a) of the Federal Rules of Civil Procedure provides that a complaint must contain,
among other things, “a short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a). “‘When a complaint does not comply with the requirement that it
be short and plain, the court has the power, on its own initiative or in response to a motion by the
defendant, to strike any portions that are redundant or immaterial . . . or to dismiss
the complaint.’” Lafurno v. Walters, No. 18-CV-1935, 2018 WL 2766144, at *3 (E.D.N.Y. June
8, 2018) (alteration in original) (quoting Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988))
(collecting cases). Nevertheless, “[d]ismissal under Rule 8 is ‘usually reserved for those cases in
6
The Court notes, however, that the City Defendants seem to want the Court to rely on at least some of these
documents for the truth of the matters asserted therein. While the Court may take judicial notice of public
documents, it may do so only for the fact of their existence, not for their truth. See, e.g., Kramer v. Time Warner
Inc., 937 F.2d 767, 774 (2d Cir. 1991).
11
which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true
substance, if any, is well disguised.’” Warner Bros. Entm’t Inc. v. Ideal World Direct, 516 F.
Supp. 2d 261, 269 (S.D.N.Y. 2007) (citing Salahuddin, 861 F.2d at 42).
The County Defendants contend that the AC should be dismissed pursuant to Rule 8
because it employs group pleading and fails to notify each Defendant of the specific allegations
asserted against him or her. (County Ds’ Mem. at 15.) “It is well-established in this Circuit that
plaintiffs cannot simply ‘lump’ defendants together for pleading purposes.” Canon U.S.A., Inc.
v. F & E Trading LLC, No. 15-CV-6015, 2017 WL 4357339, at *7 (E.D.N.Y. Sept. 29, 2017);
see Ritchie v. N. Leasing Sys., Inc., 14 F. Supp. 3d 229, 236 (S.D.N.Y. 2014). Indeed, “Rule 8(a)
is violated where a plaintiff, by engaging in ‘group pleading,’ fails to give each defendant fair
notice of the claims against it.” Canon U.S.A., 2017 WL 4357339, at *7 (internal quotation
marks omitted). But Rule 8 “does not demand that a complaint be a model of clarity,” Atuahene
v. City of Hartford, 10 F. App’x 33, 34 (2d Cir. 2001) (summary order), and “nothing in Rule 8
prohibits collectively referring to multiple defendants where the complaint alerts defendants that
identical claims are asserted against each,” Canon U.S.A., 2017 WL 4357339, at *7 (internal
quotation marks omitted). Whether a complaint should be dismissed based on impermissible
group pleading hinges on “whether adequate notice is given” that “will enable the adverse party
to answer and prepare for trial . . . and identify the nature of the case.” Id. (internal quotation
marks omitted); see Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir. 2004).
Plaintiff’s claims here are inexcusably asserted against all Defendants or all individual
Defendants. (See AC ¶¶ 64-152.) “[T]his technique muddles the clarity of the allegations,”
Vantone Grp. Liab. Co. v. Yangpu NGT Indus. Co., No. 13-CV-7639, 2015 WL 4040882, at *4
(S.D.N.Y. July 2, 2015), particularly because Plaintiff has not pleaded factual allegations that
12
would support some of the claims against certain Defendants and because he “asserts his claims
in conclusory fashion without tying them to the facts he has recited,” Lobban v. Cromwell
Towers Apartments, LP, No. 18-CV-247, 2018 WL 5447544, at *6 (S.D.N.Y. Oct. 29, 2018).
Nevertheless, the factual allegations preceding the claims largely specify which Defendant did
what, thereby putting the Defendants on notice of Plaintiff’s claims. Thus, while the AC is far
from clear, and while Plaintiff’s carelessness put a needless burden on Defendants and the Court
in determining what Plaintiff intended to allege, the group pleading alone does not rise to the
level of a Rule 8 violation sufficient to dismiss the AC in its entirety. See Vantone Grp., 2015
WL 4040882, at *4. To the extent Plaintiff’s allegations underlying a particular cause of action
are insufficient to provide notice to a particular defendant, the Court will dismiss that claim
accordingly.
Group pleading is not the only problem with the Complaint. It is written as if intended
for a reader fully familiar with the ins and outs of the underlying criminal prosecution. Little
effort has been made to provide a comprehensible narrative. Likewise, Plaintiff’s briefs are
rambling, disorganized, conclusory, and lacking in authority. Were Plaintiff pro se and entitled
to “special solicitude,” e.g., Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir.
2006), the hours spent unraveling his claims and arguments would have been appropriate. But
the Court should not have to make such efforts when the plaintiff is represented by counsel.
B.
Absolute Immunity for ADA Prisco
ADA Prisco argues that she is immune from suit under § 1983. (County Ds’ Mem. at 57.) “It is by now well established that a state prosecuting attorney who acted within the scope of
[her] duties in initiating and pursing a criminal prosecution is immune from a civil suit for
damages under § 1983.” Shmueli v. City of N.Y., 424 F.3d 231, 236 (2d Cir. 2005) (citation and
13
internal quotation marks omitted) (collecting cases). “Because the immunity attaches to the
official prosecutorial function and because the initiation and pursuit of a criminal prosecution are
quintessential prosecutorial functions, the prosecutor has absolute immunity for the initiation and
conduct of a prosecution unless [she] proceeds in the clear absence of all jurisdiction.” Id. at 237
(citations and internal quotation marks omitted). Prosecutorial functions include “deciding
whether to bring charges and presenting a case to a grand jury or a court, along with the tasks
generally considered adjunct to those functions, such as witness preparation, witness selection,
and issuing subpoenas.” Simon v. City of N.Y., 727 F.3d 167, 171 (2d Cir. 2013). “A prosecutor
is . . . entitled to absolute immunity despite allegations of h[er] ‘knowing use of perjured
testimony’ and the ‘deliberate withholding of exculpatory information,’” notwithstanding the
“‘reprehensible’” nature of that conduct. Shmueli, 424 F.3d at 237 (quoting Imbler v. Pachtman,
424 U.S. 409, 431 n.34 (1976)); see Warney v. Monroe County, 587 F.3d 113, 125 (2d Cir. 2009)
(prosecutor absolutely immune from liability under § 1983 for alleged Brady violation).
If, however, a prosecutor acts in an administrative or investigative capacity, she may
claim only qualified immunity. See Barr v. Abrams, 810 F.2d 358, 361 (2d Cir. 1987); see also
Green v. County of Monroe, 423 F. App’x 98, 100 (2d Cir. 2011) (summary order) (“[A]
prosecutor is entitled only to qualified immunity where she ‘performs the investigative functions
normally performed by a detective or police officer.’”) (quoting Buckley v. Fitzsimmons, 509
U.S. 259, 273 (1993)). “[T]here are no bright lines between quasi-judicial absolutely immune
conduct, on the one hand, and investigative and administrative qualifiedly immune behavior, on
the other . . . .” Day v. Morgenthau, 909 F.2d 75, 77 (2d Cir. 1990) (internal quotation marks
omitted). But pursuing charges against a particular individual clearly falls within the
14
prosecutorial phase of a criminal proceeding, while arrests and searches are typically police
functions and are not prosecutorial simply because a prosecutor is involved. Id. at 77-78.
ADA Prisco asserts that she is immune from suit because she is sued only in her official
capacity and the allegations against her pertain to actions taken within the scope of her duties in
initiating and pursing a criminal prosecution. (County Ds’ Mem. at 5-7.) Those actions include
telling Detective DiMase in or around December 2013 not to put his opinion in reports detailing
witness accounts, (see AC ¶¶ 46-47; Doc. 20-8); procuring witness testimony before the grand
jury notwithstanding witness credibility issues, (see AC ¶ 48); failing to disclose DiMase’s
December 5, 2013 report of his conversation with Burroughs when it was demanded in an
omnibus motion, (id. ¶ 49); disclosing a redacted copy of a material witness order application,
(id. ¶¶ 51-52); and making certain statements during her closing argument at trial, (id. ¶ 53). In
his opposition brief, Plaintiff contends that ADA Prisco is not absolutely immune insofar as the
claims pertain to her giving advice to police during the investigation and her failure to turn over
exculpatory evidence. (P’s County Opp. at 3-5.)
Plaintiff is correct that “absolute immunity does not protect a prosecutor’s actions during
the early stages of a case, such as ‘when a prosecutor gives advice to police during a criminal
investigation.’” Fiorito v. DiFiore, No. 13-CV-2691, 2014 WL 4928979, at *6 (S.D.N.Y. Oct. 2,
2014) (quoting Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009)); see Simon, 727 F.3d at
172 (“Absolute immunity is . . . not available for the act of giving legal advice to the police in
the investigative phase of a criminal case . . . .”) (internal quotation marks omitted). As the
Supreme Court has stated, “advising the police in the investigative phase of a criminal case is
[not] so intimately associated with the judicial phase of the criminal process that it qualifies for
absolute immunity.” Burns v. Reed, 500 U.S. 478, 493 (1991) (internal quotation marks
15
omitted). Additionally, the Second Circuit has explained that a prosecutor’s “supervision of and
interaction with law enforcement agencies in acquiring evidence which might be used in a
prosecution . . . are of a police nature and are not entitled to absolute protection.” Barbera v.
Smith, 836 F.2d 96, 100 (2d Cir. 1987) (emphasis in original).
Here, Plaintiff alleges that in or around December 2013, ADA Prisco advised MVPD
Detective DiMase not to include his opinion in his investigative reports. (AC ¶¶ 46-48.)7 This
seemingly was in response to DiMase’s decision to note that Burroughs, a self-identified witness
to the shooting, presented credibility problems. (See id. ¶¶ 45-48; Doc. 20-8 at 1-2.) Using my
“judicial experience and common sense,” Iqbal, 556 U.S. at 679, I regard ADA Prisco’s directive
to Detective DiMase as prosecutorial, not investigative. An ADA is aware that reports of
interviews will, if the witness is called at trial or the information is exculpatory, eventually be
turned over to the defendant. Thus, in cautioning a police officer against including the officer’s
analysis in the report – which would give the defendant a benefit to which he is not entitled and
in a sense do defense counsel’s work for him or her – the ADA would be wearing her
prosecutorial hat, not her investigative one. Nothing about such an instruction affects the
collection or preservation of evidence, and it cannot plausibly be regarded as investigative.
Further, even if ADA Prisco’s directive to DiMase was of police nature, thereby
precluding absolute immunity, she would at the very least be qualifiedly immune, because there
is no clearly established law that such an instruction is unconstitutional. See, e.g., Buckley, 509
7
Plaintiff also asserts that ADA Prisco was acting in an investigative capacity when she directed Detective DiMase
to interview Burroughs. (P’s County Opp. at 4.) Although the AC includes allegations that ADA Prisco had a
conversation with DiMase after he submitted his report of the interview, (see AC ¶ 47), Plaintiff does not allege in
his AC that Prisco directed DiMase to interview Burroughs. Because Plaintiff is not permitted to amend his AC
through his opposition brief, see, e.g., Maxim Grp. LLC v. Life Partners Holdings, Inc., 690 F. Supp. 2d 293, 308
(S.D.N.Y. 2010) (collecting cases), the Court declines to consider whether the directive constitutes a prosecutorial or
investigative function (although it seems likely to be the latter). In any event, it is hard to see how directing a police
officer to interview a potential witness could violate anyone’s rights.
16
U.S. at 268 (government officials entitled to qualified immunity and “are not subject to damages
liability for the performance of their discretionary functions when their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known”) (internal quotation marks omitted). Indeed, there is no claim at all. There is no right to
have an officer’s opinion in a police report and, in any event, Plaintiff received the report at issue
containing Detective DiMase’s opinion, (see AC ¶ 49; Doc. 20-8 at 1-2), and does not specify
any harm from the timing of its receipt.
Plaintiff’s contentions concerning alleged Brady violations arising from ADA Prisco’s
failure to disclose exculpatory or impeachment evidence arising from Detective DiMase’s
interview of Burroughs are similarly without merit. Prior to Plaintiff’s indictment, ADA Prisco
had no obligation to disclose Brady material and thus Plaintiff is not entitled to damages. See
Leka v. Portuondo, 257 F.3d 89, 98 (2d Cir. 2001) (Brady obligation is to disclose “material
evidence favorable to the defendant in a criminal prosecution”) (emphasis added) (internal
quotation marks omitted); United States v. Smith, 824 F. Supp. 420, 424 (S.D.N.Y. 1993) (noting
absence of precedent for proposition that government is obligated to turn over Brady material
before indictment is even filed). Further, assuming for the sake of argument that ADA Prisco did
not timely disclose the report – which is not pleaded, see United States v. Coppa, 267 F.3d 132,
146 (2d Cir. 2001) (government suppresses evidence within meaning of Brady only if
exculpatory material not disclosed in time for effective use at trial); see also AC ¶ 49 (Plaintiff
received DiMase report of Burroughs interview during trial); P’s City Opp. at 6 (Burroughs did
not testify at trial) – Plaintiff likewise cannot obtain damages under § 1983 for any alleged Brady
17
violations that occurred post-indictment because a prosecutor is absolutely immune from liability
under § 1983 for such violations. Warney, 587 F.3d at 125.8
As for the other alleged conduct, Plaintiff fails to respond to ADA Prisco’s arguments
that she is immune from suit for procuring witness testimony before the grand jury, responding
to defense counsel’s requests, or for statements during her closing argument at trial.
Accordingly, Plaintiff has abandoned his claims against Prisco arising from these allegations.
See Div. 1181 Amalgamated Transit Union v. R&C Transit, Inc., No. 16-CV-2481, 2018 WL
794572, at *4 (E.D.N.Y. Feb. 7, 2018) (court has discretion to deem claim abandoned when
defendant moves to dismiss that claim and plaintiff fails to address defendant’s arguments in
opposition brief); Romeo & Juliette Laser Hair Removal, Inc. v. Assara LLC, No. 08-CV-442,
2014 WL 4723299, at *7 (S.D.N.Y. Sept. 23, 2014) (“At the motion to dismiss stage, where
review is limited to the pleadings, a plaintiff abandons a claim by failing to address the
defendant’s arguments in support of dismissing that claim.”). Moreover, such actions are
quintessentially prosecutorial, thereby giving rise to absolute immunity. See Flagler v. Trainor,
663 F.3d 543, 548-49 (2d Cir. 2011) (prosecutor absolutely immune for conduct in seeking
material witness warrant); Hill v. City of N.Y., 45 F.3d 653, 661 (2d Cir. 1995) (“[P]rosecutors
are immune from § 1983 liability for their conduct before a grand jury.”); Mosley v. McIntosh,
No. 08-CV-9635, 2009 WL 1542546, at *3 (S.D.N.Y. May 29, 2009) (“[I]t is firmly established
Furthermore, most courts have held that “an acquittal extinguishes a Section 1983 plaintiff’s due process claim for
nondisclosure of Brady material.” Ambrose v. City of N.Y., 623 F. Supp. 2d 454, 469 (S.D.N.Y. 2009) (collecting
cases). Finally, there would be no claim, even absent immunity, for what Plaintiff alleges Prisco did: until she
sought a material witness warrant for Burroughs in 2016, she “sat on” the fact that Burroughs lied in his 2013
interview. (P’s County Opp. at 5; see id. at 4.) How this violated Brady, when Burroughs never testified at trial, (id.
at 6), and when the allegedly false account was inculpatory, remains a mystery.
8
18
that a prosecutor cannot be sued under § 1983 on the basis of statements made in court during
criminal proceedings against a defendant.”).
Thus, Plaintiff’s claims against ADA Prisco are dismissed.
C.
Failure to State a Claim
The City and the County Defendants move to dismiss each cause of action for failure to
state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).9
1.
Deprivation of Civil Rights under 42 U.S.C. § 1983
Plaintiff’s first cause of action is a standalone claim for “deprivation of civil rights.” (AC
¶¶ 64-70.) “If a civil rights complaint is to survive a motion to dismiss, it must make specific
factual allegations indicating a deprivation of rights.” Fonte v. Bd. of Managers of Cont’l
Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988) (collecting cases). Where a plaintiff fails to
make specific factual allegations concerning the illegal conduct and the resultant harm, the
complaint fails to state a claim for deprivation of civil rights under § 1983. See Neustein v.
Orbach, 732 F. Supp. 333, 346 (E.D.N.Y. 1990). Additionally, because “[i]t is well settled in
this Circuit that personal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983,” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995) (internal quotation marks omitted), “‘a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution,’” Thomas
v. Venditto, 925 F. Supp. 2d 352, 363 (E.D.N.Y. 2013) (quoting Iqbal, 556 U.S. at 676).
Here, Plaintiff summarily states that all of the Defendants violated his rights under the
First, Fifth, Sixth, and Fourteenth Amendments. (AC ¶ 66; see id. ¶ 67.) This is plainly
insufficient. It is entirely unclear which of his rights under those Amendments he alleges were
9
Although, as stated above, ADA Prisco is immune from suit, the Court will address whether dismissal is also
warranted as to her on the alternative ground that Plaintiff fails to state a claim.
19
violated and how the first cause of action is distinct from Plaintiff’s other claims. See Folk v.
City of N.Y., 243 F. Supp. 3d 363, 371 (E.D.N.Y. 2017) (dismissing similar standalone § 1983
claim). Accordingly, Plaintiff’s first cause of action is dismissed as to all Defendants.
2.
False Arrest and False Imprisonment
Defendants also seek to dismiss Plaintiff’s second cause of action, which is for false
arrest and false imprisonment under § 1983. In New York, false arrest and false imprisonment
claims are synonymous causes of action. Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991);
Brome v. City of N.Y., No. 02-CV-7184, 2004 WL 502645, at *3 (S.D.N.Y. Mar. 15, 2004). In
determining whether a plaintiff has sufficiently pleaded a claim for false arrest or false
imprisonment under § 1983, courts look to state law. See Weyant v. Okst, 101 F.3d 845, 852 (2d
Cir. 1996); Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995).
To plead a false arrest or false imprisonment claim under New York law, a plaintiff must
establish: “(1) that the defendants intentionally confined plaintiff, (2) that plaintiff was
conscious of the confinement and did not consent to it, and (3) that the confinement was not
otherwise privileged.” Liu v. N.Y. State Dep’t of Health, No. 16-CV-4046, 2017 WL 3393944, at
*5 (S.D.N.Y. Aug. 7, 2017); see Jocks v. Tavernier, 316 F.3d 128, 134-35 (2d Cir. 2003); Singer,
63 F.3d at 118. “An arrest is justified or privileged if . . . it is based on probable cause.”
LaFontaine v. City of N.Y., No. 08-CV-1555, 2009 WL 3335362, at *5 (S.D.N.Y. Oct. 14, 2009);
see Singer, 63 F.3d at 118 (“There can be no federal civil rights claim for false arrest where the
arresting officer had probable cause.”). “Probable cause to arrest exists when the arresting
officer has knowledge or reasonably trustworthy information of facts and circumstances that are
sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has
committed or is committing a crime.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)
20
(internal quotation marks omitted). Once a law enforcement officer “has a reasonable basis for
believing there is probable cause” to arrest a suspect, “he is not required to explore and eliminate
every theoretically plausible claim of innocence before making an arrest,” Ricciuti v. N.Y.C.
Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997), and “the validity of an arrest is not contingent
upon an ultimate finding of guilt or innocence,” Bulanov v. Town of Lumberland Constable
Meehan, No. 00-CV-4292, 2002 WL 181365, at *4 (S.D.N.Y. Feb. 6, 2002).
The City Defendants argue that, as a threshold matter, Plaintiff was never arrested
because he was already serving an unrelated sentence when he was indicted. (City Ds’ Mem. at
13-14.) Although “[a] claim for false arrest must be premised on an actual arrest,” Bissinger v.
City of N.Y., No. 06-CV-2325, 2007 WL 2826756, at *8 (S.D.N.Y. Sept. 24, 2007) (collecting
cases), and the AC is silent as to whether Plaintiff was arrested, a claim for false imprisonment
need not be premised on an arrest, see Emanuel v. Griffin, No. 13-CV-1806, 2015 WL 1379007,
at *11 n.3 (S.D.N.Y. Mar. 25, 2015).10 Thus, dismissal on this basis is unwarranted.
The City and County Defendants assert that the claim should be dismissed because there
was probable cause to arrest or confine Plaintiff, particularly because Smith, a witness to the
shooting, identified Plaintiff as the shooter and Wells relayed that others had told him that
Plaintiff had shot him. (See City Ds’ Mem. at 14-15; County Ds’ Mem. at 8-9.) Although
Plaintiff acknowledges the legal standard for determining whether the alleged lack of probable
cause is plausible, he completely fails to address Defendants’ arguments. (See P’s City Opp. at
10; P’s County Opp. at 8.) He states that probable cause determinations are based on the totality
of the circumstances and that “the Court should utilize these factors” – factors that he does not
10
Defendants concede that after his unrelated sentence was over, Plaintiff was detained for some months until his
acquittal for the August 8, 2011 shooting. (City Ds’ Mem. at 8 n.9.)
21
specify – but provides no more than a conclusory assertion that probable cause was lacking. (See
P’s City Opp. at 10.)
Plaintiff alleges in his AC that Smith initially told police that she did not see the shooter,
but later identified Plaintiff as the shooter and reported that she had been afraid to identify
Plaintiff. (AC ¶¶ 24-25.) Although Plaintiff pleads that Smith had outstanding bench warrants
and open cases at the time she identified Plaintiff as the shooter, he does not allege that the
officers had reason to believe she was lying when she made that identification,11 nor is it
plausible to infer that she was being untruthful merely from the fact that matters were pending
against her or because she was too afraid to identify Plaintiff initially. (See id.) To the contrary,
“[u]nder New York law an identified citizen informant is presumed to be reliable.” Caldarola v.
Calabrese, 298 F.3d 156, 165 (2d Cir. 2002). Plaintiff further alleges that Wells, the victim who
survived the shooting, informed MVPD detectives on October 1, 2012, that he had seen Plaintiff
the night of the shooting and that he had heard from his cousins and others both that Plaintiff was
the shooter and that he was trying to apologize to Wells. (See AC ¶¶ 26-27; Doc. 20-11 at 5:1318, 15:6-15.)12 Plaintiff does not allege that Wells was lying or mistaken or had been given false
information, let alone that the officers had reason to believe that any of that was the case. Nor
does he allege facts that would otherwise have led, let alone required, the officers to discount the
veracity of Smith’s and Wells’s accounts. Instead, Plaintiff contends that probable cause was
lacking simply because Burroughs lacked credibility. (See P’s County Opp. at 8.) But
Burroughs’s lack of reliability has no bearing on the trustworthiness of other witnesses, and that
allegation is insufficient to plead that Defendants pursued Plaintiff in the knowing absence of
11
Indeed, Plaintiff does not even allege in the AC that Smith was in fact lying.
12
Hearsay may be considered in connection with probable cause to arrest even if it would be inadmissible at trial.
Draper v. United States, 358 U.S. 307, 311-12, 312 n.4 (1959).
22
probable cause. Cf. Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (rejecting
argument that conflicting accounts negates probable cause).
Plaintiff goes on at length about the trial evidence, (see, e.g., P’s City Opp. at 2-8), but
whether there was probable cause to arrest or charge, and whether there was proof beyond a
reasonable doubt, are two entirely different things. See, e.g., United States v. Traylor, No. 07CR-6125, 2009 WL 87470, at *10 (W.D.N.Y. Jan. 12, 2009) (adopting report and
recommendation), aff’d, 396 F. App’x 725 (2d Cir. 2010) (summary order); Dale v. Kelley, 908
F. Supp. 125, 135 (W.D.N.Y. 1995), aff’d, 95 F.3d 2 (2d Cir. 1996). “The same evidence can be
insufficient for one but sufficient for the other.” Garcia v. Gasparri, 193 F. Supp. 2d 445, 453
(D. Conn. 2002). In any event, the “[i]dentification of the suspect by a victim or eyewitness can
constitute, by itself, probable cause to prosecute.” Nnodimele v. Derienzo, No. 13-CV-3461,
2016 WL 337751, at *8 (E.D.N.Y. Jan. 27, 2016); see Rodriguez v. State of New York, No. 95CV-3639, 1996 WL 197749, at *2 (S.D.N.Y. Apr. 23, 1996) (“[T]he identification of an
individual as the perpetrator of a crime by a putative victim of, or eyewitness to, the crime is in
itself sufficient to establish probable cause, as long as it is reasonable to believe that the putative
victim or eyewitness is telling the truth.”).13 Nor does the existence of potentially exculpatory
evidence negate probable cause, as long as there are “facts and circumstances supporting a
reasonable belief that a prosecution could succeed.” Nnodimele, 2016 WL 337751, at *10
(internal quotation marks omitted). Here, Smith made an eyewitness identification of Plaintiff as
the shooter, and the information provided by Wells corroborated her. At the very least, an
officer involved in the arrest would be entitled to qualified immunity, because it cannot be said
that all reasonable officers would agree that Smith’s initial reluctance to identify the perpetrator
“[T]he testimony of a single, uncorroborated eyewitness is” even “generally sufficient to support a conviction.”
United States v. Danzey, 594 F.2d 905, 916 (2d Cir. 1979).
13
23
of a violent act and her open cases made her so incredible that her information should be
disregarded. See, e.g., Amore v. Novarro, 624 F.3d 522, 536 (2d Cir. 2010) (officer qualifiedly
immune if reasonable officers could disagree on whether probable cause test was met). Certainly
no clearly established law required that conclusion. See Buckley, 509 U.S. at 268; Amore, 624
F.3d at 530.14
Based on the allegations in the AC, reasonably trustworthy information existed that was
sufficient to warrant a person of reasonable caution in the belief that Plaintiff had committed a
crime, see Escalera, 361 F.3d at 743, or at the very least reasonable officers could disagree on
the point. Thus, Plaintiff’s second cause of action is dismissed as to all Defendants.
3.
Malicious Prosecution
Plaintiff’s third cause of action is for malicious prosecution under § 1983. Like claims
for false arrest, “[c]laims for . . . malicious prosecution, brought under § 1983 to vindicate the
Fourth and Fourteenth Amendment right to be free from unreasonable seizures, are ‘substantially
the same’ as claims for . . . malicious prosecution under state law.” Jocks, 316 F.3d at 134
(quoting Weyant, 101 F.3d at 852). To prevail on a malicious prosecution claim under New
York law, a plaintiff must prove “(1) the initiation or continuation of a criminal proceeding
against plaintiff; (2) termination of the proceeding in plaintiff’s favor; (3) lack of probable cause
for commencing the proceeding; and (4) actual malice as a motivation for defendant’s actions.”
Id. at 136 (internal quotation marks omitted). A plaintiff bringing a § 1983 malicious
prosecution claim must also plead a post-arraignment seizure, although “the requirements of
attending criminal proceedings and obeying the conditions of bail suffice on that score,” id., and
14
Although Defendants have not advance a qualified-immunity defense, the court can address the issue sua sponte.
See Ottati v. City of Amsterdam, No. 06-CV-1370, 2011 WL 1204763, at *2 (N.D.N.Y. Mar. 28, 2011); Doyle v.
Coombe, 976 F. Supp. 183, 187 (W.D.N.Y. 1997), aff’d, 159 F.3d 1346 (2d Cir. 1998).
24
that the “the criminal proceedings against him were terminated in a manner indicating his
innocence,” Lanning v. City of Glens Falls, No. 17-970, 2018 WL 5810258, at *7 (2d Cir. Nov.
7, 2018).
The City Defendants contend that Plaintiff’s malicious prosecution claim should be
dismissed as to them because Plaintiff has failed to plead that the City Defendants initiated the
prosecution, that they lacked probable cause, or that they were motivated by actual malice. (City
Ds’ Mem. at 15-19.) Plaintiff’s response is difficult to follow. In “Point Two” of his opposition
brief, the heading for which states that he has pleaded sufficient facts for malicious prosecution,
Plaintiff addresses only the third element of a malicious prosecution claim, (P’s City Opp. at 1112), and states that “his complaint for False Arrest and False Imprisonment should be allowed to
go forward,” (id. at 12). Subsections A and B to Plaintiff’s “Point Eight,” which pertains to
Plaintiff’s Monell claim, appear to contain additional arguments as to why Plaintiff’s § 1983
malicious prosecution claim should proceed. (See id. at 18-19.) Specifically, he asserts that the
great lengths the City Defendants took to investigate show that they initiated the prosecution and
states, without explanation, that his claim is plausible. (See id.)
With respect to the first element of a malicious prosecution claim, “[t]here is a
presumption that a prosecutor exercises independent judgment in deciding whether to initiate and
continue a criminal proceeding.” Culpepper v. City of N.Y., No. 14-CV-6585, 2016 WL
5334978, at *5 (S.D.N.Y. Sept. 21, 2016) (internal quotation marks omitted). That presumption
may be rebutted where an officer “ha[d] the plaintiff arraigned, . . . fill[ed] out complaining and
corroborating affidavits, [or] sign[ed] felony complaints,” Mitchell v. Victoria Home, 434 F.
Supp. 2d 219, 227 (S.D.N.Y. 2006); see Llerando-Phipps v. City of N.Y., 390 F. Supp. 2d 372,
383 (S.D.N.Y. 2005), where an officer “play[ed] an active role in the prosecution, such as giving
25
advice and encouragement or importuning the authorities to act,” or where an officer withheld
material exculpatory evidence from the prosecutor or knowingly prepared a false confession that
formed the basis for the prosecution, Manganiello v. City of N.Y., 612 F.3d 149, 163 (2d Cir.
2010) (alterations and internal quotation marks omitted); see Stukes v. City of N.Y., No. 13-CV6166, 2015 WL 1246542, at *9 (E.D.N.Y. Mar. 17, 2015) (collecting cases). Therefore, “[t]o
initiate a prosecution, a defendant must do more than report the crime or give testimony.”
Manganiello, 612 F.3d at 163; see Stukes, 2015 WL 1246542, at *9 (no initiation of prosecution
where officer merely had “typical interaction[s]” with the prosecutor’s office by forwarding
audio and video tapes to the office and reviewed those tapes with a prosecutor); Smith v. City of
N.Y., No. 04-CV-3286, 2010 WL 3397683, at *9 (S.D.N.Y. Aug. 27, 2010) (no initiation of
prosecution where officer’s “only involvement in the prosecution was relaying to the ADA his
observations and the facts known to him regarding plaintiff’s arrest and testifying before the
grand jury”), aff’d sub nom. Smith v. Tobon, 529 F. App’x 36 (2d Cir. 2013) (summary order).
In light of these principles, the allegations concerning the conduct of Defendants Ibanez,
Gamble, Clarke, Manzione, Adison, and Baltimore are insufficient to overcome the presumption
that the Westchester County District Attorney’s Office acted with independent judgment. There
are no allegations that these officers had Plaintiff arraigned, filled out complaining or
corroborating affidavits, signed any felony complaints, pressured or encouraged prosecutors to
act, or otherwise played an active role in the prosecution. Indeed, the only officers specifically
alleged to have interacted with the District Attorney’s Office in connection with Plaintiff’s
criminal case are a Detective or Sergeant named “Wuttke,” (AC ¶¶ 39-40), and Detective
DiMase, (id. ¶¶ 45-48), neither of whom is a defendant in this action. Further, Plaintiff cites no
authority for his contention that the extensive nature of the City Defendants’ investigation
26
renders it plausible that the City Defendants initiated or continued the criminal proceeding
against Plaintiff, and the Court has found none.
To the extent Plaintiff alleges that the presumption that the Westchester County District
Attorney’s Office acted with independent judgment is rebutted by MVPD officers’ alleged
suppression of exculpatory material or forwarding of fabricated evidence to prosecutors, his
allegations are conclusory. He provides no facts whatsoever regarding fabricated evidence.
Plaintiff alleges that Defendants lost a series of tapes and a thumb drive. (Id. ¶¶ 20-23, 28-31,
42, 44.)15 He alleges that those tapes never revealed a time, (id. ¶ 21); that they “would have
shown what type of day it was on the date in question and how people were dressed,” (id. ¶ 28);
that they would have provided Plaintiff an opportunity to “show contradictions of Sgt. Wuttke,
i.e., Clifton did not know the girls,” (id. ¶ 41); and that “[f]rom the time that the police obtained
the evidence, no one has ever seen it again,” (id. ¶ 30). Whatever Plaintiff means by these
statements, none of these allegations render it plausible that the evidence was exculpatory;
indeed, Plaintiff does not even allege that the cameras at issue would have captured the crime.
And he provides no information about what might have been contained in the thumb drive.
There are simply no facts from which the Court can infer that the missing evidence would have
had any effect on the prosecutor’s decision-making, and thus the loss of the items – although
inexcusable – cannot be said to amount to suppression of exculpatory evidence16 sufficient to
make the officers initiators of the prosecution.
15
Plaintiff also alleges that the officers lost the original copy of a photo array by failing to voucher and safeguard
the evidence in accordance with MVPD protocols, (AC ¶ 28), but he does not appear to contend that the array was
exculpatory, (see id. ¶ 27 (alleging that Wells wrote that Plaintiff was the “one who supposed to have shot [him]” on
the array)), or that the loss of the original, when a copy was preserved, harmed him.
16
Plaintiff does not even allege that the loss of the items was intentional as opposed to negligent.
27
To the extent Plaintiff alleges that the presumption is rebutted because he alleges that
Detective Gamble manufactured Wells’s identification of Plaintiff, the facts in the AC do not
make that conclusion plausible. Plaintiff alleges that Detective Gamble pointed to Plaintiff’s
picture in a photo array and instructed Wells to “write your initials there” after Wells had
informed Detectives Gamble and Clarke that he saw Plaintiff the night of the shooting and “had
heard on the street that [Plaintiff] was the shooter.” (Id. ¶ 27.) That Gamble pointed to
Plaintiff’s photo made the identification useless, but does not amount to the fabrication of
evidence. Indeed, Plaintiff concedes that the interaction between Gamble and Wells was
captured on video, (id.), and does not allege that that video was withheld from the prosecutors.17
Absent such an allegation, that Gamble botched a photo identification does not plausibly suggest
that the District Attorney’s decision to prosecute was not independent.18
Because Plaintiff has not plausibly overcome the presumption that the initiation of the
prosecution was an independent decision of the Westchester County District Attorney’s Office,
his malicious prosecution claim is dismissed as to the City Defendants. The Court therefore need
not address the City Defendants’ arguments concerning other deficiencies with respect to this
claim.
17
Nor does he allege that the array or the video was withheld from him. To the contrary, he concedes that the trial
judge suppressed the identification and the array was not used at trial. (P’s City Opp. at 3.)
18
For reasons that elude the Court, Plaintiff attached to the AC a photo array other than the one initialed by Wells.
(Doc. 20-10.) Plaintiff alleges that Wells asked if he could indicate on the array that Plaintiff was “the one who
supposed to have shot me,” and that he then wrote “that statement” on the array. (AC ¶ 27.) On the array attached
to the AC, the photo of one individual (presumably Plaintiff) is circled and the following is written next to the photo:
“I saw him run down the block with the gun and shoot it at Cliff.” (Doc. 20-10.) That is clearly not Wells’s array
because it lacks his statement and because he would not have referred to himself in the third person. The AC
implies that Ricky Young picked Plaintiff out of a photo array, (AC ¶ 43), and if the array attached to the AC is
Young’s, that identification – which Plaintiff alleges was repeated by Young before the grand jury, (id.) – only
strengthens the probable cause to charge Plaintiff.
28
The County Defendants also move to dismiss Plaintiff’s malicious prosecution claim,
arguing that Plaintiff has failed to plead the absence of probable cause or actual malice. (County
Ds’ Mem. at 9-11.) With respect to the absence of probable cause, Defendants contend that the
AC alleges that probable cause existed in 2015. Indeed, the AC does seem to imply that the
police and prosecutors had probable cause at some point in 2015, (see AC ¶ 29), which is before
the grand proceedings were commenced in April 2016, (see id. ¶ 48). The County Defendants
further argue that the grand jury indictment establishes probable cause and that the witness
identifications of Plaintiff as the shooter also establish probable cause. (County Ds’ Mem. at 910.) As for malice, Defendants contend that Plaintiff’s allegations that “Defendants
misrepresented and falsified evidence before the District Attorney of the County of Westchester
County [sic],” (AC ¶ 77), and that “Defendants did not make a complete, full and truthful
statement of facts to the District Attorney,” (id. ¶ 78), defeat any argument that Plaintiff has
plausibly pleaded that ADA Prisco acted with malice. (County Ds’ Mem. at 10-11.) Although
the phrase “malicious prosecution” does not appear in Plaintiff’s opposition to the County
Defendants’ motion, he seems to argue that ADA Prisco lacked probable cause because she
knew since December 2013 that Burroughs was not being truthful and that he has properly
pleaded that ADA Prisco acted with malice because she failed to turn over Brady material for the
two-and-a-half years preceding the grand jury proceedings, prosecuted Plaintiff notwithstanding
her knowledge concerning Burroughs’s untruthfulness, and made certain statements during her
summation – statements that do not appear in the AC and that Plaintiff does not clearly identify
in his opposition brief. (See P’s County Opp. at 8-10.)19
The only reference in the AC to Prisco’s summation is to her argument that the City officers’ incompetence in
connection with the missing video evidence should not deprive the deceased of justice, (AC ¶ 53; Doc. 20-12 at 3336), an argument that Plaintiff somehow construes as an admission of the City’s liability, (AC ¶ 53).
19
29
In the malicious prosecution context, a grand jury indictment creates a presumption of
probable cause. Savino v. City of N.Y., 331 F.3d 63, 72 (2d Cir. 2003). That presumption “may
only be rebutted by evidence that the indictment was procured by ‘fraud, perjury, the suppression
of evidence or other police conduct undertaken in bad faith.’” Id. (emphasis in original) (quoting
Colon v. City of N.Y., 455 N.E.2d 1248, 1251 (N.Y. 1983)). The burden of rebutting that
presumption lies with the plaintiff, id. at 73, and a malicious prosecution claim may be
“dismiss[ed] . . . at the pleading stage where the plaintiff has failed to allege facts sufficient to
rebut the presumption of probable cause flowing from a grand jury indictment,” Hadid v. City of
N.Y., 730 F. App’x 68, 71 n.1 (2d Cir. 2018) (summary order) (collecting cases).
Here, Plaintiff’s indictment by a grand jury creates a presumption of probable cause. The
facts alleged in the AC do not rebut that presumption. Plaintiff does not provide specific
allegations concerning the evidence presented to the grand jury that would allow the court to
draw the reasonable inference that the indictment was a product of fraud or other misconduct.
See Lewis v. City of N.Y., 591 F. App’x 21, 22 (2d Cir. 2015) (summary order). To the contrary,
as discussed in connection with Plaintiff’s second cause of action, the facts alleged in the AC
show that there was probable cause to initiate a criminal proceeding against Plaintiff
notwithstanding issues pertaining to Burroughs’s credibility, and Plaintiff does not allege that
anything developed during the course of the prosecution that would have dissipated probable
cause. See Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996); Gaston v. City of
N.Y., 851 F. Supp. 2d 780, 793-94 (S.D.N.Y. 2012). Plaintiff contends in his opposition brief
that “Jason was a liar and Cliff, Ricky and Jasmine,” (P’s County Opp. at 9), from which the
Court understands Plaintiff to assert that Jason Dulyx, Clifton Wells, Ricky Young, and Jasmine
Smith provided false statements. But the AC does not plausibly allege that the Defendants had
30
any reason to believe that any of these witnesses gave false accounts (indeed, there are no
allegations concerning Dulyx or his account),20 and Plaintiff cannot amend a pleading through an
opposition brief. See, e.g., Maxim Grp. LLC, 690 F. Supp. 2d at 308. Accordingly, Plaintiff’s
malicious prosecution claim is dismissed as to the County Defendants.
4.
Malicious Abuse of Process
The Defendants also move to dismiss Plaintiff’s fourth cause of action, which is for
malicious abuse of process. The elements of a claim for malicious abuse of process under
§ 1983 are derived from state law. Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994). “In New
York, a malicious abuse of process claim lies against a defendant who (1) employs regularly
issued legal process to compel performance or forbearance of some act (2) with intent to do harm
without excuse or justification, and (3) in order to obtain a collateral objective that is outside the
legitimate ends of the process.” Id. “‘[A] malicious motive alone does not give rise to a cause of
action for abuse of process.’” Savino, 331 F.3d at 77 (alteration omitted) (quoting Curiano v.
Suozzi, 469 N.E.2d 1324, 1326 (N.Y. 1984)). A plaintiff “must claim that [the defendant] aimed
to achieve a collateral purpose beyond or in addition to his criminal prosecution.” Id.
The City and County Defendants contend that Plaintiff has failed to plead that they aimed
to achieve a collateral objective beyond Plaintiff’s prosecution. (City Ds’ Mem. at 19-21;
County Ds’ Mem. at 10-11.) The City Defendants further argue that Plaintiff has failed to plead
20
That a witness may have given inconsistent accounts or have a criminal record hardly makes that person
necessarily incredible. Were that the case, many crimes – particularly violent crimes – could never be prosecuted.
Certainly no clearly established law requires an officer or prosecutor to disbelieve such a witness, and the
Defendants would be entitled to qualified immunity even assuming the witnesses were lying.
Further, given the “broad investigative function [of] the grand jury,” United States v. Suleiman, 208 F.3d
32, 40 (2d Cir. 2000), and the fact that “one of [its] chief functions [is] the evaluation of the strength of the evidence
and the credibility of witnesses,” United States v. Brito, 907 F.2d 392, 395 (2d Cir. 1990), it is hardly surprising that
prosecutors sometimes present witnesses to the grand jury to see what they will say “once placed in the solemn
atmosphere of the grand jury room,” United States v. Chen, 933 F.2d 793, 798 (9th Cir. 1991). Indeed, it is not
misconduct even if the prosecutor anticipates that the witness may lie. Id.
31
a malicious motive. (City Ds’ Mem. at 19-21.) Plaintiff fails to address these arguments.
Instead, he points to how the City Defendants lost evidence, contends that ADA Prisco elicited
perjury (although it is not clear from the complaint when or how she did this), and reiterates the
standard for deciding a motion to dismiss in general terms. (See P’s City Opp. at 12-13; P’s
County Opp. at 10.) But it does not plausibly follow that merely losing evidence or eliciting
testimony from a witness with credibility problems indicates that a defendant acted with the
intent to do harm. Likewise, “tampering with evidence is not considered abuse of process
because the goal or purpose – convicting the defendant – is a legitimate use of process.” Kraft v.
City of N.Y., 696 F. Supp. 2d 403, 416 (S.D.N.Y. 2010), aff’d, 441 F. App’x 24 (2d Cir. 2011)
(summary order). Thus, even intentionally losing evidence or suborning perjury, absent a
collateral purpose beyond the desire to convict Plaintiff, is insufficient to state a claim for abuse
of process. Because Plaintiff has failed to plausibly plead either bad intent or that Defendants
were pursuing any objective other than convicting Plaintiff, his claim for malicious abuse of
process is dismissed as to all Defendants.21
5.
Right to a Fair Trial
Plaintiff’s fifth claim is for the denial of his right to a fair trial under § 1983. He alleges
that Defendants created and suborned false evidence, that MVPD forwarded false evidence to
prosecutors, and that Defendants misled the judges and prosecutors by providing false testimony
and proffering false evidence. (AC ¶¶ 91-95.) Although it is apparent that Plaintiff asserts his
fifth cause of action against the City Defendants, it is not clear whether he brings this claim
against ADA Prisco as well.
Having dismissed Plaintiff’s abuse-of-process claim for failure to plead malice or a collateral objective, the Court
need not address the City Defendants’ contention that probable cause is a complete defense to an abuse-of-process
claim. (City Ds’ Mem. at 20.)
21
32
“The Second Circuit has held that ‘[i]t is firmly established that a constitutional right
exists not to be deprived of liberty on the basis of false evidence fabricated by a government
officer.’” Morse v. Spitzer, No. 07-CV-4793, 2013 WL 359326, at *3 (E.D.N.Y. Jan. 29, 2013)
(alteration in original) (quoting Zahrey v. Coffey, 221 F.3d 342, 355 (2d Cir. 2000)). To prevail
on a claim for denial of a fair trial based on fabricated evidence, a plaintiff must prove that “an
(1) investigating official (2) fabricates evidence (3) that is likely to influence a jury’s decision,
(4) forwards that information to prosecutors, and (5) the plaintiff suffers a deprivation of liberty
as a result.” Jovanovic v. City of N.Y., 486 F. App’x 149, 152 (2d Cir. 2012) (summary order)
(citing Jocks, 316 F.3d at 138); see Garnett v. Undercover Officer C0039, 838 F.3d 265, 279-80
(2d Cir. 2016); Shabazz v. Kailer, 201 F. Supp. 3d 386, 394-95 (S.D.N.Y. 2016). Probable cause
is not a defense to a denial of a fair trial claim. Morse, 2012 WL 3202963, at *5.
The City Defendants contend that this claim must be dismissed as to them because
Plaintiff’s allegations that the City Defendants falsified evidence and forwarded it to prosecutors
are conclusory. (City Ds’ Mem. at 21-22.) Plaintiff responds that he has plausibly pleaded a
constitutional violation, asserting that he “has placed all these items in the [f]acts of the
complaint with references to the trial transcripts for an exhibit for the Court to make it’s [sic]
conclusion.” (P’s City Opp. at 14.) Plaintiff further contends that he has properly pleaded a
conspiracy to support his fair trial claim; that Defendants had “Tyshawn Burroughs, or Cliff
Webb [sic], or Ricky Young” lie to help the District Attorney’s Office indict Plaintiff and
33
deprive him of a fair identification procedure;22 and that Defendants lost evidence, thereby
depriving Plaintiff of an alibi and his ability to testify at trial. (Id. at 14-15.)23
Plaintiff’s response is emblematic of the problem with his AC: it is conclusory.
Although Plaintiff states that he has properly pleaded a cause of action for the denial of a fair
trial, he fails to cite a single paragraph of the AC to support that assertion. Instead, he seems to
expect the Court to sift through his AC and the exhibits attached thereto to divine a claim. That,
however, is not the role of the Court on a motion to dismiss.
Moreover, as previously discussed, Plaintiff has not plausibly alleged that the lost
evidence was exculpatory. He also has not plausibly alleged in his AC that any of the City
Defendants fabricated – that is “invent[ed], forge[d], or devise[d] falsely” – any evidence.
Fabricate, Black’s Law Dictionary (10th ed. 2014). Instead, he pleaded that Detective DiMase
(who is not a defendant) candidly identified the inconsistencies in Burroughs’s account. (AC
¶¶ 45, 48; Doc. 20-8.)24 Plaintiff’s allegations concerning Ricky Young’s account, which are
nearly impossible to follow, concern Officer Wuttke, not any of the Defendant officers. (See AC
¶¶ 39-44.) With respect to Wells, Plaintiff alleges that on August 9, 2011, unnamed officers
obtained a statement that Wells did not see who shot him and that Wells told Detectives Gamble
and Clarke in the fall of 2012 that, among other things, he heard on the street that Plaintiff was
the shooter. (AC ¶¶ 16, 27; Doc 20-11 at 15:6-18, 16:4-7.) Plaintiff does not allege that the
Defendants concocted those aspects of Wells’s account or even that they were false. The closest
The Court assumes that Plaintiff’s reference to “Cliff Webb” was a typographical error and that Plaintiff intended
to refer to Clifton Wells. To the extent Plaintiff meant to refer to “Cliff Webb,” there is no reference to such a
person in the AC.
22
Plaintiff’s opposition brief contains incomplete sentences and is confusingly worded. This is the Court’s best
attempt to discern Plaintiff’s argument as to why he believes that he has properly pleaded a claim for denial of a fair
trial.
23
24
Plaintiff concedes that Burroughs did not testify at trial. (P’s City Opp. at 6.)
34
Plaintiff comes to pleading that evidence was fabricated is his allegation that Detective Gamble
pointed to Plaintiff’s picture in a photo array and said, “[W]rite your initials there,” after Wells
had stated that he had seen Plaintiff before the shooting and had heard that Plaintiff was the
shooter. (AC ¶ 27.) But, as previously stated, this conduct does not plausibly amount to the
fabrication of evidence and even if it did, Plaintiff concedes that the allegedly manufactured
evidence was not used at his trial. (P’s City Opp. at 3.)
As for Plaintiff’s contention that he has sufficiently pleaded the claim “via a conspiracy,”
(id. at 13), the allegations contained in his AC concerning his denial of a fair trial claim make no
reference to a conspiracy, (see AC ¶¶ 92-95), and amendment by opposition brief will not be
permitted, see, e.g., Maxim Grp. LLC, 690 F. Supp. 2d at 308. Moreover, as discussed below in
connection with the § 1983 conspiracy claim, Plaintiff has failed to plausibly plead that the City
Defendants were part of a conspiracy. Accordingly, Plaintiff’s fifth cause of action is dismissed
as to the City Defendants.
The County Defendants also seek dismissal of Plaintiff’s denial of a fair trial claim,
arguing that such a claim cannot arise absent a conviction and thus Plaintiff’s acquittal
extinguished the claim. (See County Ds’ Mem. at 11.) In so arguing, Defendants point to
Schiavone Construction Co. v. Merola, where the court concluded in the context of prejudicial
pre-trial publicity that “no denial of a fair trial can be shown where the plaintiff was acquitted of
the crime charged.” 678 F. Supp. 64, 66 (S.D.N.Y.), aff’d, 848 F.2d 43 (2d Cir. 1988) (per
curiam). Plaintiff responds, without citing any authority, that an acquittal does not preclude his
claim. (P’s County Opp. at 10-11.)
As a preliminary matter, the contours of Plaintiff’s denial of a fair trial claim as to the
County Defendants are unclear. Plaintiff alleges that “Defendants created suborned and created
35
[sic] false evidence,” (AC ¶ 92), but there are no specific allegations that ADA Prisco falsified
evidence. He further asserts that “Defendants misled the judges and prosecutors by providing
false testimony and proffering false evidence,” (id. ¶ 94), but there are no specific allegations as
to what evidence ADA Prisco presented that she knew was false.
Instead, Plaintiff alleges that ADA Prisco belatedly turned over evidence. (See id. ¶¶ 4849, 52.) Courts have categorically rejected denial of a right to fair trial claims based on Brady
violations where the plaintiff was not convicted in the underlying criminal trial. See Tiscareno v.
Frasier, 603 F. App’x 672, 679 (10th Cir. 2015) (unpublished) (collecting cases); see also
Ambrose, 623 F. Supp. 2d at 471 (“[T]he verdict acquitting Plaintiff of the criminal charges
against him negates any violation of his Brady rights and extinguishes any Section 1983 due
process claim that might arise from Defendants’ alleged suppression of exculpatory evidence.”).
“[S]trictly speaking, there is never a real ‘Brady violation’ unless the nondisclosure was so
serious that there is a reasonable probability that the suppressed evidence would have produced a
different verdict.” Strickler v. Greene, 527 U.S. 263, 281 (1999) (emphasis added). Thus, where
an individual is acquitted, he cannot establish that, had the exculpatory or impeachment evidence
not been suppressed, there is a reasonable probability that the verdict would have been different.
Accordingly, Plaintiff has failed to state a claim for the denial of a right to a fair trial
against the County Defendants as well.
6.
Conspiracy
Plaintiff’s sixth cause of action is a § 1983 conspiracy claim, which requires that he
plausibly allege: “(1) an agreement between a state actor and a private party; (2) to act in concert
to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing
damages.” Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002). “A
36
complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a
person of constitutional rights cannot withstand a motion to dismiss.” Leon v. Murphy, 988 F.2d
303, 311 (2d Cir. 1993) (internal quotation marks omitted).
The City and County Defendants contend that Plaintiff has failed to plead facts to
plausibly allege a meeting of the minds sufficient to sustain a § 1983 conspiracy because he
offers no more than conclusory, vague, and general allegations of a conspiracy to deprive him of
his constitutional rights. (City Ds’ Mem. at 22-23; County Ds’ Mem. at 11-12.) With respect to
the City Defendants, Plaintiff responds that he has sued several state actors and a private party,
that the City Defendants had witnesses lie so they could help the District Attorney’s Office make
a case against Plaintiff, and that they acted “[i]n furtherance of goals” – goals that Plaintiff does
not specify. (P’s City Opp. at 14-15.) He further asserts that the Court should consider what was
pleaded in the AC, such as “how all the evidence which could have exculpated [P]laintiff which
was in Defendants’ possession was lost in each instance” as well as “the evidence which was lost
by former Police Det[ective] Ibanez in an unrelated case to establish this was a § 1983
conspiracy.” (Id. at 15-16 (emphasis omitted).) The relevance of such evidence to a conspiracy
claim is unclear. Regardless, Plaintiff makes no argument, and alleges no facts, to plausibly
suggest that the City Defendants agreed to act in concert to inflict a constitutional injury.
Instead, the AC contains only boilerplate allegations of a conspiracy. (AC ¶¶ 97-99.) This is
fatal to Plaintiff’s conspiracy claim. See Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011).25
Plaintiff argues in his opposition to the County Defendants’ motion that the standard articulated by the Second
Circuit in Gallop – that “claims of conspiracy containing only conclusory, vague, or general allegations of
conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss,” 642 F.3d at 369
(internal quotation marks omitted) – “is not proper in the current proceeding,” (Ps’ County Ds’ Opp. at 10). But he
does not explain what he means by this, or why that precedent is inapplicable, nor does he point to specific portions
of his AC that demonstrate how the plausibility standard is met.
25
37
For similar reasons, Plaintiff’s claim must be dismissed as to the County Defendants. In
response to their motion to dismiss, Plaintiff contends that
[t]he meeting of the minds clearly is shown when Defendants and
their witnesses such as [Burroughs] and Jason [Dulyx], and Cliff and
Jasmine and Ricky meet at the bequest [sic] of the Prosecution and
come up with agreements which allow them to receive benefits such
as receiving benefits for lying, to get themselves out of bench
warrants, or to get favorable treatment for outstanding cases or get
monies for living arrangements.
(P’s County Opp. at 11.) He further contends that he “has alleged these violations in his
amended complaint and has provided testimony and accompanying exhibits.” (Id.) But Plaintiff
cannot amend a pleading through his opposition brief, see, e.g., Maxim Grp. LLC, 690 F. Supp.
2d at 308, and the AC contains no allegations that plausibly support an agreement between the
County Defendants and any witnesses. If anything, the AC suggests Prisco was lied to. (See AC
¶¶ 77-78.) Further, it is ludicrous to suggest that the everyday event of a prosecutor making
deals with witnesses – even if the AC were to describe any such deals, which it does not – would
plausibly suggest a conspiracy. See Gordon v. City of N.Y., No. 10-CV-5148, 2012 WL
1068023, at *13 (E.D.N.Y. Mar. 29, 2012) (cooperation agreement with witness insufficient to
plausibly suggest conspiracy); cf. San Filippo v. U.S. Tr. Co. of N.Y., 737 F.2d 246, 256 (2d Cir.
1984) (prosecutor preparing witnesses is “routine and necessary,” and if sufficient to suggest
impropriety, would subject every government witness to “burden of defending a costly civil suit
charging ‘conspiracy’ to give false testimony”). The AC contains no facts plausibly suggesting
that ADA Prisco agreed with others to inflict unconstitutional harm on Plaintiff, and thus the
claim is dismissed as to the County Defendants as well.
38
7.
Failure to Intervene
Plaintiff’s seventh cause of action is for failure to intervene, which he asserts against each
“individual defendant.” (AC ¶¶ 101-03.) “It is widely recognized that all law enforcement
officials have an affirmative duty to intervene to protect the constitutional rights of citizens from
infringement by other law enforcement officers in their presence.” Anderson v. Branen, 17 F.3d
552, 557 (2d Cir. 1994). “Liability may attach only when (1) the officer had a realistic
opportunity to intervene and prevent the harm; (2) a reasonable person in the officer’s position
would know that the victim’s constitutional rights were being violated; and (3) the officer does
not take reasonable steps to intervene.” Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512
(S.D.N.Y. 2008), aff’d sub nom. Jean-Laurent v. Wilkerson, 461 F. App’x 18 (2d Cir. 2012)
(summary order).
The City Defendants contend that this claim should be dismissed as to them because
Plaintiff’s AC is conclusory and “bereft of any facts to support the notion that any of the City
Defendants had a duty or an opportunity to intervene.” (City Ds’ Mem. at 23.) In opposition,
Plaintiff argues, without citing to a single paragraph of his AC, that “it should be abundantly
clear that the police had a reasonable opportunity to intervene to prevent the harm from
occurring” and that “if these police officers could have simply done their job and followed the
patrol guide and properly voucher [sic] the evidence that would have prevented any harm
happening [sic] and defendant would have been able to put forth defenses such as an alibi or
possibly even testify [o]n his own behalf.” (P’s City Opp. at 16.) Plaintiff also contends that
“[c]learly” there were doubts about the truthfulness of Burroughs, Dulyx, and “Webb [sic]” and
thus the officers should have gathered more information. (Id.)
39
The County Defendants argue that the claim should be dismissed because there is no
underlying constitutional violation, the claim is asserted against all “individual defendants” and
ADA Prisco is sued only in her official capacity, and Plaintiff has failed to plead that the County
Defendants had a realistic opportunity to intervene. (County Ds’ Mem. at 12-13.) In his
opposition, Plaintiff asserts, without citing any authority, that “ADA Prisco had an affirmative
duty to intervene to [p]rotect Plaintiff once she found out that her witnesses were untruthful and
were being reported by Det[ective] DiMase,” that a reasonable person would know that
Plaintiff’s rights were being violated, that “Prisco took no steps to intervene in December of
2013,” and that she had plenty of time to investigate further because Plaintiff was not indicted
until May 2016. (P’s County Opp. at 11.)
Plaintiff’s responses to the arguments put forth by both sets of Defendants are, to the
extent comprehensible, unavailing. Although it is inexcusable that certain officers lost evidence,
it does not plausibly follow that the other officers or ADA Prisco had an opportunity to prevent
that loss or any constitutional harm that might flow from it. Indeed, absent plausible allegations
that the evidence was exculpatory or how the other Defendants might know of it, it is impossible
to see how they could know that Plaintiff’s constitutional rights were being violated.
To the extent Plaintiff is suggesting that putting witnesses with credibility issues in the
grand jury is improper, the suggestion is farcical. See supra note 20. A grand jury is an
investigative body entitled to weigh witness credibility. See, e.g., United States v. Calandra, 414
U.S. 338, 343-44 (1974); United States v. O’Connor, 750 F. Supp. 90, 93 (W.D.N.Y. 1990); New
York v. Taylor, 870 N.Y.S.2d 791, 792 (App. Div. 1st Dep’t 2009). Indeed, even using a witness
with credibility issues at trial – which happens every day – is not a constitutional violation unless
the prosecutor knows or should know that the witness is lying, see Perkins v. Le Fevre, 691 F.2d
40
616, 619 (2d Cir. 1982), which is not plausibly alleged here. Law enforcement officials must
routinely assess witness credibility. If probable cause exists, as it did here, that a jury ultimately
finds that the beyond-a-reasonable-doubt standard was not met hardly suggests that the
prosecutor knowingly elicited false testimony.
Plaintiff’s contentions concerning the City Defendants’ and ADA Prisco’s alleged failure
to investigate do not save his claim. The cases upon which Plaintiff relies do not pertain to
claims for failure to intervene, nor do they demonstrate that prosecutors have a duty to
investigate or that police must continue to investigate once they are in possession of facts
sufficient to establish probable cause. To the contrary, where, as here, probable cause is
established, there is no constitutional right to demand further investigation before arrest or
prosecution. Virgil v. Town of Gates, 455 F. App’x 36, 40 (2d Cir. 2012) (summary order)
(collecting cases); see Panetta v. Crowley, 460 F.3d 388, 398 (2d Cir. 2006) (“Once an officer
has probable cause, he or she is [not] required . . . to continue investigating, sifting and weighing
information.”) (internal quotation marks omitted).
In any event, it is well settled that “a failure to intervene claim is contingent upon the
disposition of the primary claims underlying the failure to intervene claim.” Case v. City of N.Y.,
233 F. Supp. 3d 372, 401 (S.D.N.Y. 2017) (internal quotation marks omitted). Plaintiff’s failure
to intervene claim appears to be contingent on his false arrest and malicious prosecution claims,
(see AC ¶ 103), which have been dismissed. To the extent his failure to intervene claim pertains
to another cause of action, those claims, too, have been dismissed.
Accordingly, Plaintiff’s failure-to-intervene claim is dismissed for failure to state a claim
against all Defendants.
41
8.
Negligent Hiring, Retention, Supervision & Training
Defendants also move to dismiss Plaintiff’s cause of action for negligent hiring, retention,
supervision, and training. As a preliminary matter, it is not readily apparent against which
Defendant(s) the claim is asserted. Plaintiff alleges that unspecified defendants failed to use
reasonable care in hiring, training, and supervising unspecified defendants, (AC ¶¶ 120, 122),
and then states that “Defendant Mount Vernon Police Department[] knew or should have known
in the exercise of reasonable care, the propensities of the defendants to engage in the wrongful
conduct heretofore alleged in this Complaint,” (id. ¶ 121). So while the claim appears to be
asserted only against the City Defendants, it is unclear which Defendants were negligent in
hiring, retaining, supervising, and training which officers. Additionally, although the “wrongful
conduct” at issue seems to be the loss of evidence, that is far from clear. Because the allegations
in Plaintiff’s AC fail to give each Defendant fair notice of the claims against them, the claim is
dismissed pursuant to Rule 8. Canon U.S.A., 2017 WL 4357339, at *7.
Even assuming that the AC provides fair notice to the City Defendants, it must be
dismissed for failure to state a claim. “A claim for negligent hiring, retention, supervision, and
training is based on the employer’s direct negligence.” Cruz v. New York, 24 F. Supp. 3d 299,
311 (W.D.N.Y. 2014) (internal quotation marks omitted). “Claims for negligent hiring and
retention arise from an employer having placed the employee in a position to cause foreseeable
harm, harm which the injured party most probably would have been spared had the employer
taken reasonable care in making its decision concerning the hiring and retention of the
employee.” Id. (internal quotation marks omitted). “Similarly, claims for negligent supervision
and training arise when an employer has notice of the employee’s tendency for the bad conduct
and its lack of supervision or inadequate training is the proximate cause of a plaintiff’s injuries.”
42
Id. (internal quotation marks omitted). “[A]n essential element of a cause of action in negligent
hiring, retention, supervision, and training is that the employer knew or should have known of
the employee’s propensity for the conduct which caused the injury.” Bouche v. City of Mount
Vernon, No. 11-CV-5246, 2012 WL 987592, at *9 (S.D.N.Y. Mar. 23, 2013).
The City Defendants argue the Plaintiff’s allegations are conclusory. (See City Ds’ Mem.
at 24-25.) Plaintiff responds that discovery is needed. (P’s City Opp. at 17.) But “Twombly and
Iqbal require that [Plaintiff] plead specific facts showing that [he] is entitled to more discovery.”
P&S Printing LLC v. Tubelite, Inc., No. 14-CV-1441, 2015 WL 4425793, at *6 (D. Conn. July
17, 2015) (collecting cases); see Anguilo v. Cty. of Westchester, No. 11-CV-7823, 2012 WL
5278523, at *3 n.4 (S.D.N.Y. Oct. 25, 2012) (“[A]s Iqbal makes clear, a plausible claim must
come before discovery, not the other way around.”) (emphasis in original). Additionally,
Plaintiff, at the very least, has not alleged facts sufficient to infer that the City of Mount Vernon
or any individual Defendants who were supervisory officers knew of the officers’ propensity to
act in the manner alleged and thus the claim must be dismissed. See Cruz, 24 F. Supp. 3d at 311;
Bouche, 2012 WL 987592, at *9.26
To the extent Plaintiff asserts a claim for negligent hiring, retention, supervision, and
training against the County Defendants, the claim must be dismissed as to them as well. He
asserts no factual allegations as to how ADA Prisco or the County of Westchester were negligent
26
The closest Plaintiff comes is noting that Ibanez lost video evidence in another case. (AC ¶ 60.) But Plaintiff
presents no allegations that any other individual Defendant was aware of that fact, and a single instance is generally
insufficient to provide notice to the municipal employer. See Dwares v. City of N.Y., 985 F.2d 94, 100 (2d Cir.
1993), overruled on other grounds by Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507
U.S. 163 (1993); see also Connick v. Thompson, 563 U.S. 51, 62 (2011) (pattern of similar violations generally
necessary to put employer on notice). Further, the failure to properly voucher the video evidence in this case
apparently occurred in August 2011. (AC ¶¶ 19-23.) But the other case to which Plaintiff points was filed in 2013
and refers to a loss of evidence occurring in October or November 2011, see Sudu v. City of Mount Vernon, No. 13CV-5557, (S.D.N.Y. Aug. 9, 2013), Doc. 1, so that case could not have provided notice to anyone at the time of the
misconduct alleged here. See Kucera v. Tkac, No. 12-CV-264, 2013 WL 1414441, at *6 (D. Vt. Apr. 8, 2013)
(cases filed after conduct alleged by plaintiff cannot serve as notice).
43
in hiring, retaining, supervision, and training employees. In opposing the County Defendants’
motion, Plaintiff points to allegations in the AC concerning the conversation between ADA
Prisco and MVPD Detective DiMase27 and asserts for the first time in his opposition brief that
Plaintiff did not receive any documentation of this conversation (as opposed to the report itself)
until the underlying criminal trial. (P’s County Opp. at 12.)28 Plaintiff does not explain how
these allegations support a claim for negligent hiring, retention, supervision, and training against
the County Defendants, nor can the Court discern one.29 Accordingly, to the extent Plaintiff
asserts his ninth cause of action against the County Defendants, it is dismissed as to them as
well.
9.
Monell Liability
Defendants also move to dismiss Plaintiff’s municipal liability claim. “To hold a
[municipal defendant] liable under § 1983 for the unconstitutional actions of its employees, a
plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2)
causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Wray v. City of N.Y.,
490 F.3d 189, 195 (2d Cir. 2007) (alteration and internal quotation marks omitted). To allege
such a policy or custom, the plaintiff may assert:
(1) the existence of a formal policy officially endorsed by the municipality; (2)
actions taken or decisions made by municipal officials with final decision making
authority, which caused the alleged violation of plaintiff’s civil rights; (3) a practice
so persistent and widespread that it constitutes a custom of which constructive
knowledge can be implied on the part of the policymaking officials; or (4) a failure
Plaintiff cites to paragraph 48 of the AC as describing this conversation, (P’s County Opp. at 12), but that
paragraph does not mention any such conversation. The Court assumes Plaintiff meant to refer to paragraph 46.
27
28
Plaintiff cites paragraph 52 of the AC in support of his contention that he did not receive any documentation of
the conversation until trial. (P’s County Opp. at 12.) Paragraph 52, however, makes no reference to Detective
DiMase or the conversation he allegedly had with ADA Prisco.
29
If Plaintiff means to assert that Prisco was training DiMase in how to write reports, the claim fails for the reason
stated on page 16-17 above: there is no right to have an officer’s analysis in a report, and advising an officer to stick
to the facts is entirely appropriate.
44
by policymakers to properly train or supervise their subordinates, amounting to
“deliberate indifference” to the rights of those who come in contact with the
municipal employees.
Betts v. Shearman, No. 12-CV-3195, 2013 WL 311124, at *15 (S.D.N.Y. Jan. 24, 2013) (internal
quotation marks omitted), aff’d, 751 F.3d 78 (2d Cir. 2014). “[M]ere allegations of a municipal
custom, a practice of tolerating official misconduct, or inadequate training and/or supervision are
insufficient to demonstrate the existence of such a custom unless supported by factual details.”
Tieman v. City of Newburgh, No. 13-CV-4178, 2015 WL 1379652, at *13 (S.D.N.Y. Mar. 26,
2015). Further, while “[i]t is well settled that ‘the inadequacy of police training may serve as the
basis for § 1983 liability where the failure to train amounts to deliberate indifference to the rights
of persons with whom the police come into contact,” “[t]he deliberate indifference standard is
‘stringent’ and requires ‘proof that a municipal actor disregarded a known or obvious
consequence of his action.’” Turczyn ex rel. McGregor v. City of Utica, No. 13-CV-1357, 2014
WL 6685476, at *5 (N.D.N.Y. Nov. 26, 2014) (alteration omitted) (first quoting City of Canton
v. Harris, 489 U.S. 378, 380 (1989); and then quoting Connick, 563 U.S. at 61).
I need not address Monell liability because no underlying constitutional claims survive.
Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir. 2006). Even if they did, a municipal liability
theory would fail. Plaintiff offers only conclusory allegations of “customs and practices of
tolerating lawlessness and corruption” amounting to “deliberate indifference.” (AC ¶ 110; see
id. ¶¶ 58-60, 108, 111.) He provides no facts to plausibly support this conclusion. Instead, he
points to a series of general and unrelated alleged shortcomings of the MVPD and its officers and
attempts to unite them under a single policy of tolerating lawlessness and corruption. But these
allegations do not constitute the “pattern of similar constitutional violations” that is ordinarily
45
necessary to demonstrate deliberate indifference. Connick, 563 U.S. at 62 (emphases added).30
“While a court may not apply a heightened pleading standard to Monell claims, ‘boilerplate’
conclusions as to municipal liability will not suffice, even at this early stage of the litigation.”
Betts, 2013 WL 311124, at *15 (citation omitted); see Zahra v. Town of Southold, 48 F.3d 674,
685 (2d Cir. 1995) (“[T]he mere assertion . . . that a municipality has such a custom or policy is
insufficient in the absence of allegations of fact tending to support, at least circumstantially, such
an inference.”) (second alteration in original) (internal quotation marks omitted); Turczyn, 2014
WL 6685476, at *6 (municipal liability insufficiently pleaded where complaint used label
“deliberate indifference” and generically referenced failure to train, but did not “allege facts that
support either conclusory notion”); Guerrero v. City of N.Y., No. 12-CV-2916, 2013 WL 673872,
at *2 (S.D.N.Y. Feb. 25, 2013) (“[B]oilerplate claims do not rise to the level of plausibility
required to state a viable Monell claim.”) (internal quotation marks omitted). Accordingly,
Plaintiff’s Monell claim fails as to the City Defendants.
The County Defendants assert that Plaintiff’s Monell claim must be dismissed as to them
because the AC does not identify any specific policies or customs of the County that would give
rise to liability under Monell. (County Ds’ Mem. at 14-15.) Plaintiff provides no response in his
opposition brief. Accordingly, he has abandoned the claim insofar as it is asserted against the
Most of Plaintiff’s examples relate to officers other than the Defendants and, with the exception of Ibanez losing
evidence, those that do describe wholly different kinds of alleged misconduct. (AC ¶ 60.) They thus cannot serve
as notice to the City of any tendency on the part of the individual officers to commit the kinds of acts of which
Plaintiff complains here.
30
Connick illustrates the level of specificity required for a pattern. There the plaintiff pointed to four
previous reversals for Brady violations, and the Supreme Court found that those could not have given the District
Attorney notice of a need to train because they did not involve failure to disclose physical or scientific evidence, as
the plaintiff’s case did. See 563 U.S. at 62-63. If one type of Brady violation does not suffice as notice for other
types of Brady violations, the scattershot claims of multiple unrelated types of misconduct here also cannot suffice.
Plaintiff also relies on “contemporaneous or subsequent conduct [that] cannot establish a pattern of violations that
would provide notice.” Id. at 63 n.7 (internal quotation marks omitted).
46
County Defendants. Div. 1181 Amalgamated Transit Union, 2018 WL 794572, at *4 (collecting
cases); Romeo & Juliette Laser Hair Removal, Inc., 2014 WL 4723299, at *7. Moreover, the AC
does not plausibly plead any policy or custom of the County Defendants that violated his rights.
Plaintiff’s Monell claim against the County Defendants is therefore also dismissed for failure to
state a claim.
D.
State Law Claims
In addition to his § 1983 claims, Plaintiff asserts four claims arising under New York
law. (AC ¶¶ 126-52.) The “traditional ‘values of judicial economy, convenience, fairness, and
comity’” weigh in favor of declining to exercise supplemental jurisdiction where all federal-law
claims are eliminated before trial. Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.
2006) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). Having determined
that the only claims over which this Court has original jurisdiction should be dismissed, I decline
to exercise supplemental jurisdiction over Plaintiffs’ remaining state law causes of action. See
id. (citing 28 U.S.C. § 1367(c)(3)). Accordingly, Plaintiff’s tenth, eleventh, twelfth, and
thirteenth causes of actions are dismissed without prejudice.
IV.
LEAVE TO AMEND
Leave to amend a complaint should be freely given “when justice so requires.” Fed. R.
Civ. P. 15(a)(2). It is “within the sound discretion of the district court to grant or deny leave to
amend.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). “Leave to
amend, though liberally granted, may properly be denied for: ‘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, futility
47
of amendment, etc.’” Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman
v. Davis, 371 U.S. 178, 182 (1962)).
Plaintiff has already amended once, (Doc. 20), after having the benefit of a pre-motion
letter from Defendant Westchester County and former Defendant Anthony Scarpino, (Doc. 9);
the City Defendants’ anticipated grounds for dismissal, which were stated during the September
11, 2017 conference; as well as the Court’s observations during that conference. In general, a
plaintiff’s failure to fix deficiencies in the previous pleading, after being provided notice of them,
is alone sufficient ground to deny leave to amend. See Nat’l Credit Union Admin. Bd. v. U.S.
Bank Nat’l Ass’n, 898 F.3d 243, 257-58 (2d Cir. 2018) (“When a plaintiff was aware of the
deficiencies in his complaint when he first amended, he clearly has no right to a second
amendment even if the proposed second amended complaint in fact cures the defects of the first.
Simply put, a busy district court need not allow itself to be imposed upon by the presentation of
theories seriatim.”) (alteration, footnotes, and internal quotation marks omitted); In re Eaton
Vance Mut. Funds Fee Litig., 380 F. Supp. 2d 222, 242 (S.D.N.Y. 2005) (denying leave to
amend because “the plaintiffs have had two opportunities to cure the defects in their complaints,
including a procedure through which the plaintiffs were provided notice of defects in the
Consolidated Amended Complaint by the defendants and given a chance to amend their
Consolidated Amended Complaint,” and “plaintiffs have not submitted a proposed amended
complaint that would cure these pleading defects”), aff’d sub nom. Bellikoff v. Eaton Vance
Corp., 481 F.3d 110, 118 (2d Cir. 2007) (per curiam) (“[P]laintiffs were not entitled to an
advisory opinion from the Court informing them of the deficiencies in the complaint and then an
opportunity to cure those deficiencies.”) (internal quotation marks omitted).
48
Plaintiff was largely on notice of the deficiencies with his original complaint and has
failed to rectify them in his AC.31 Further, although he has asked to amend again, he has not
suggested that he is in possession of facts that would cure the deficiencies identified in this
opinion. Accordingly, the Court declines to grant leave to amend. See TechnoMarine SA v.
Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (plaintiff need not be given leave to amend if he
fails to specify how amendment would cure the pleading deficiencies in his complaint); Gallop,
642 F.3d at 369 (district court did not err in dismissing claim with prejudice in absence of any
indication plaintiff could or would provide additional allegations leading to different result); see
also Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015)
(denial of leave to amend would be proper where “request gives no clue as to how the
complaint’s defects would be cured”) (internal quotation marks omitted).
V.
CONCLUSION
For the reasons stated above, the motions to dismiss of the City Defendants and the
County Defendants are granted. Claims One through Nine are dismissed with prejudice, and
claims Ten through Thirteen are dismissed without prejudice. The Clerk of Court is respectfully
directed to terminate the pending motions, (Docs. 27, 31), and close the case.
SO ORDERED.
Dated: December 3, 2018
White Plains, New York
________________________________
UNITED STATES DISTRICT JUDGE
While the County Defendants’ pre-motion letter did not specifically refer to ADA Prisco, as she was not then a
named Defendant, that letter raised the issue of prosecutorial immunity. (Doc. 9.)
31
49
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