Galliotti et al v. Green et al
DECISION AND ORDER granting summary judgment in favor of the defendants and dismissing plaintiffs' complaint in its entirety with prejudice. Signed by Hon. Michael A. Telesca on 7/19/11. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DANIEL P. GALLIOTTI, & DONALD P. GALLIOTTI,
MICHAEL GREEN, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS DISTRICT ATTORNEY FOR
MONROE COUNTY; STEFANIE L. GUIDO,
ASSISTANT DISTRICT ATTORNEY, IN HER
OFFICIAL CAPACITY AS AN ASSISTANT DISTRICT
ATTORNEY FOR THE MONROE COUNTY DISTRICT
ATTORNEY’S OFFICE; MONROE COUNTY; NEW YORK
STATE INSURANCE FRAUD BUREAU INVESTIGATOR
MARK WILLIAMS, INDIVIDUALLY AND IN HIS
Plaintiffs Daniel Galliotti and Donald Galliotti (“Plaintiffs”
or the “Galliottis”), bring this action pursuant to 42 U.S.C.
§§ 1983, 1985, 1986 and 1988(b), for false arrest, malicious
prosecution, withholding evidence, false statements, conspiracy and
failure to supervise.
Defendants District Attorney Michael Green
(“Green”), Assistant District Attorney Stefanie Guido (“ADA Guido”)
and Monroe County,
move for summary judgement pursuant to Rule 56
Plaintiffs have failed to produce any evidence that would
There is no evidence that defendant Mark Williams was ever
served with a summons or complaint in this action, and Williams
has not appeared. Because time for service has long expired, the
claims against Williams are deemed abandoned, and dismissed with
For the reasons set forth below, Defendants Michael Green,
Stephanie Guido, and Monroe County’s motion for summary judgment is
Plaintiffs Daniel Galliotti and Donald Galliotti are brothers
who operate an automobile repair shop that was the subject of an
investigation by insurance fraud investigators and the New York
The purpose of the investigation was to determine
whether or not repair shops were charging insurance companies for
repairs they had not performed.
As part of the investigation,
investigators devised a sting operation and purposefully damaged a
car and recorded and marked each damaged part.
81, Defendants’ Exhibit H.
See Docket #43-2 at
The investigators then assessed the
amount of damage done to the car, and estimated the cost of repairs
that would be necessary to repair the car.
The car would then be
brought to a repair shop, and once repaired, investigators examined
the car to determine whether or not the repair shop had completed
all of the repairs for which they had charged.
With respect to the investigation of the Galliottis’ repair
shop, insurance investigators damaged a vehicle, and determined
that it required $3,237.75 for repairs.
The car was then brought
to the Galliottis’ shop for repairs by a purported customer.
The Galliottis were shown the insurance assessment indicating that
the vehicle required $3,237.75 in repairs.
The Galliottis took
full payment of $3,237.75 but only completed some of the repairs
Defendants’ Exhibit F.
Insurance adjustors examined the car and
required to replace but did not repair certain parts at all.
Insurance adjustors found that the repairs made by the Galliottis
were worth less than the $3,237.75 paid to them.
Based on the
conclusion that the Galliottis had overcharged for the repairs they
made, and that they had failed to make all of the repairs as
promised, the Monroe County District Attorney’s Office decided to
seek criminal indictments against the Galliottis for insurance
evidence to a Monroe County Grand Jury, which voted to indict the
Id. at 108, Defendants’ Exhibit I.
were arrested, and eventually appeared for trial before Monroe
County Court Judge John R. Schwartz.
performed had been in accordance with an alternative assessment of
damages that they independently determined, based on their own
inspection of the vehicle.
According to the Galliottis, they
provided a copy of their assessment to the investigator posing as
a customer, and/or to the insurance company upon the return of the
Automobile Repair” form.
Although it is not clear that the
assessment was actually attached to the Certification of Automobile
Repair form, the assessment did comport with the repairs that were
actually made to the vehicle.
Based on this evidence, at the
conclusion of the trial, Judge Schwartz dismissed the charges
against the Galliottis.
The Plaintiffs then brought the instant action asserting seven
causes of action2 against Defendants Green, ADA Guido and Monroe
prosecution & false arrest; (2) a § 1983 claim alleging deprivation
of liberty without due process of law by withholding exculpatory
evidence and deliberately failing to conduct a constitutionally
proceedings; (3) a § 1983 claim alleging a civil rights conspiracy;
(4) a § 1983 claim alleging that Defendants conspired together to
protection under the law (5) a § 1983 claim alleging that Green
failed to properly train and supervise Assistant District Attorneys
statements” concerning the Plaintiffs and (7) a § 1983 claim
seeking to impose liability on Monroe County pursuant to Monell v.
Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611
Plaintiffs’ complaint contains several errors with respect
to the numbering of the causes of action. For example, the
complaint erroneously skips from the third cause of action to the
sixth cause of action. It also fails to number one of the causes
of action. Additionally, Plaintiffs final cause of action is
labeled “fourth cause of action” and is in fact the second
“fourth” cause of action set forth in the complaint. For sake of
clarity I have renumbered the causes of action in the order they
Defendants’ motion shall be considered as a motion for
Defendants’ motion erroneously requests summary judgement
pursuant to Rule 12(b)6 rather than Rule 56(c) of the Federal Rules
of Civil Procedure.
Defendants also failed to submit a statement
of undisputed facts as required by Local Rule 56.1 in support of
their motion for summary judgement.
Despite these errors, it is
clear that the Defendants are seeking summary judgement, as the
supporting memorandum reveals numerous references to rule 56, sets
forth the standard for summary judgement, and states in conclusion
depositions in support of their motion for summary judgement.
In their reply brief, Defendants state that their intention
was to file a summary judgement motion pursuant to Rule 56 and
submit a statement of undisputed facts, and request the court to
excuse their typographical error which unintentionally described
their motion as being made pursuant to Rule 12(b)(6).
Plaintiffs contend that Defendants’ motion is not a summary
judgement motion and instead should be treated as a Rule 12(b)6
motion to dismiss. However, Plaintiffs have recognized Defendants’
motion as one for summary judgement in their motion requesting an
extension of time to respond to the Defendants’ motion. See Docket
#47-2 at 1.
Additionally, Plaintiffs’ memorandum in response to
Defendants’ motion correctly recognized that Defendants could not
have procedurally filed a 12(b)6 motion, as Defendants had already
Plaintiffs’ Memorandum of Law at 10 (hereinafter Pl. Mem.).
such, Plaintiffs were well aware of Defendants’ intention to move
for summary judgement, and I find that Defendants’ motion may be
properly considered as a motion for summary judgement.
II. Summary Judgement Standard
Summary judgment is appropriate pursuant to Rule 56 where "the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). The court must view all facts in the light most favorable to
the nonmoving party, but "only if there is a 'genuine' dispute as
to those facts." Scott v. Harris, 500 U.S. 372, 380-81 (2007).
"When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary judgment." Id.
A genuine issue of material fact exists if "the evidence is
nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
"[c]onclusory allegations, conjecture, and speculation," Kerzer v.
affirmatively "set forth specific facts showing that there is a
genuine issue for trial." Fed. R. Civ. P. 56(e). "When no rational
jury could find in favor of the nonmoving party because the
evidence to support its case is so slight, there is no genuine
issue of material fact and a grant of summary judgment is proper."
Gallo v. Prudential Residential Servs., Ltd. P'ship., 22 F.3d 1219,
1224 (2d Cir. 1994) (citing Dister v. Cont'l Group, Inc., 859 F.2d
1108, 1114 (2d Cir. 1998)).
Claims against Defendants Green and ADA Guido
Plaintiffs allege that Green and ADA Guido are liable for
malicious prosecution, false arrest, withholding evidence, false
statements, conspiracy to obstruct justice, conspiracy to violate
Additionally, Plaintiffs allege that Green failed
to properly train and supervise Assistant District Attorneys under
These claims are barred on the grounds that ADA Guido
and Green have absolute prosecutorial immunity, sovereign immunity
and by Plaintiffs’ failure to state a claim upon which relief may
Standard for determining the applicability of absolute
individual liability for actions undertaken “in the exercise of
their duties.” Burns v. Reed, 500 U.S. 478, 486-487, 111 S.Ct.
1934, 114 L.Ed.2d 547 (1991). Prosecutors are afforded immunity for
their conduct in “initiating a prosecution and in presenting the
State's case,” so long as that conduct is “intimately associated
Pachtman, 424 U.S. 409, 430-431 (1976).
function as an advocate.” Dory v. Ryan, 25 F.3d 81, 83 (2nd Cir.
“The absolute immunity accorded to government prosecutors
characterized as closely associated with the conduct of litigation
or potential litigation, including presentation of evidence to a
grand jury to initiate a prosecution ..., [and] activities in
deciding not to do so ...” Barrett v. United States, 798 F.2d 565,
571-572 (2d Cir. 1986) (citing Lee v. Willins, 617 F.2d 320
(2nd Cir. 1980)).
Plaintiff’s claim alleging malicious prosecution and
false arrest is barred by prosecutorial immunity
To prevail on a § 1983 claim against a state actor for
malicious prosecution, a plaintiff must show that their rights
were violated under the Fourth Amendment and must establish the
Manganiello v. City of New York, 612 F.3d 149, 161 (2nd Cir.
To establish 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.” Murphy v. Lynn, 118 F.3d 938, 947.
In the case at bar, the criminal charges brought against
Plaintiffs were terminated in their favor.
Plaintiffs argue that
prosecute and withheld or misrepresented evidence to the grand
jury in order to “garner significant press for the [District
Attorney’s] Office and to justify the $142,000 in grant money paid
by New York State.”
See Third Amended Complaint ¶ 73.
Attorney’s office’s prosecution of the Galliottis was motivated to
gain good press or by any malice.
Furthermore, “absolute immunity
extends even to the fabrication of evidence to be presented to a
grand jury.” Tassone v. County of Onondaga, 1996 WL 307436, at *1
(N.D.N.Y. 1996) (citing Dory, 25 F.3d at 83). The Second Circuit
has held that an Assistant District Attorney’s alleged act of
“conspiring to present falsified evidence to, and to withhold
exculpatory evidence from, a grand jury” was “clearly protected by
the doctrine of absolute immunity as all are part of his function
as an advocate.” Hill v. City of New York, 45 F.3d 653, 661
(2d Cir. 1995).
Plaintiffs contend however, that ADA Guido participated in
the investigation of the Galliotti brothers’ repair shop, and
because such activity is not associated with her function as a
prosecutor, she should not be afforded prosecutorial immunity.
See Pl. Mem. At 16-17 (citing Richards v. City of New York, 1998
U.S. Dist. LEXIS 13675, *6).
However, it is undisputed that the
investigation was conducted by New York State Police and the
Insurance Frauds Bureau.
See Docket #43-2 at 71-79, Defendants’
While The District Attorney’s office prosecuted the
specifically to law enforcement officers, and is not directed to
supporting memorandum present no evidence or explanation as to how
Defendants Green and ADA Guido are liable to Plaintiffs for false
See Complaint ¶ 71-77.
This court finds that Defendants Green and ADA Guido are
afforded prosecutorial immunity in their individual capacity with
respect to Plaintiffs’ claims alleging malicious prosecution. The
false arrest claim against Green and ADA Guido was not alleged in
Plaintiffs’ claim for withholding evidence and failing
to conduct an adequate investigation are barred by
Plaintiffs second cause of action, alleging that Defendants
Green and ADA Guido purposefully withheld favorable evidence and
failed to conduct a adequate investigation of the evidence, is
prosecutor’s decision as to what evidence to present at trial is
Goldstein, 555 U.S. 335, 129 S.Ct. 855, 861 (2009).
immunity despite allegations of his ... ‘deliberate withholding of
‘reprehensible,’ it does not make the prosecutor amenable to a
civil suit for damages.” Shmueli v. City of New York, 424 F.3d
231, 237 (2d Cir. 2005).
Additionally, as mentioned above,
Plaintiffs have failed to submit any evidence that ADA Guido or
Green were at all involved in the investigation resulting in the
indictment and trial of Plaintiffs.
Plaintiffs’ claim for Supervisory Liability against Green is
barred by prosecutorial immunity
Plaintiffs allege that District Attorney Green had “a custom
and policy, or pattern and practice of failing to adequately train
and supervise [A]ssistant [D]istrict [A]ttorneys concerning the
obligation to disclose exculpatory and impeachment material.”
Third Amended Complaint ¶ 65-66.
Plaintiffs contend that as a
result of this failure to properly train, Assistant District
Attorneys withheld presentation of favorable evidence to a grand
jury which caused Plaintiffs to be maliciously prosecuted.
A supervisor may be held liable for his subordinates
actions if “the defendant [Green] participated directly in the
alleged constitutional violation ... [or] the defendant [Green]
created a policy or custom under which unconstitutional practices
Colon v. Coughlin 58 F.3d 865, 873 (2nd Cir. 1995).
Plaintiffs contend that the District Attorney’s office’s
failure to train or supervise is an administrative act and not a
prosecutorial act, therefore their claim of failure to supervise
is not barred by prosecutorial immunity.
(citing Hill 45 F.3d 53, 661).
See Pl. Mem. at 15
It is well established, however,
that supervision of an Assistant District Attorney by a District
Attorney is a legal function, entitled to absolute immunity.
Van de Kamp, 555 U.S. 335, 129 S.Ct. 855, 861 (2009) (“Prosecutors
involved in such supervision or training or information-system
management enjoy absolute immunity”).
Plaintiffs claim that the
District Attorney failed to train Assistant District Attorneys in
their obligation to disclose exculpatory evidence.
training or discretion of a prosecutor, as such training is
“directly connected with the conduct of the trial.”
prosecutors are immune in a suit directly attacking their actions
related to an individual trial”.
Id. at 862.
As such a claim
against District Attorney Green as a supervising prosecutor, for
failure to properly train Assistant District Attorneys in their
trial technique, is barred by the doctrine of absolute immunity.
Additionally, Plaintiffs have failed to produce any evidence
Assistant District Attorney Stephanie Guido testified under oath
that she received substantial training and was supervised.
Docket #43-2 at 111, Defendants’ Exhibit
Accordingly, I find
that there is no question of fact as to whether Assistant District
Attorney Guido was properly trained.
Claims against Defendants Green and ADA Guido in their
official capacities are barred by sovereign immunity
Plaintiffs' claims against Green and ADA Guido in their
official capacities are barred by the Eleventh Amendment of the
United States Constitution, since Defendants acted on behalf of
New York State, which itself is immune from liability under the
See Lewis v. City of New York, 2008 WL
4307985, at *2 (S.D.N.Y. Sept. 16, 2008).
The Second Circuit has
held that “While performing prosecutorial acts, district attorneys
[and assistant district attorneys] in New York represent not the
county in which they serve but the state.”
F.2d 73, 76 (2nd Cir. 1988).
Baez v. Hennessy, 853
As such, claims against District
Attorneys and Assistant District Attorneys in their official
capacity are constitutionally barred by the Eleventh amendment.
See Rodriguez v. Weprin, 116 F.3d 62 (2nd Cir. 1997).
Plaintiffs have failed to establish a false statements
or conspiracy claim
Plaintiffs allege that as a result of
ADA Guido and Green’s
false statements made by them to the press, Plaintiffs were
“deprived of his and her [sic] rights
under the Fourth and
Fourteenth Amendments.” Plaintiffs allege that the direct and
foreseeable consequences of Defendants’ actions caused Plaintiffs
to suffer “emotional trauma, loss of privacy and irreparable harm
to their reputation and businesses,” presumably in violation of
their substantive due process rights.
To prove a substantive due process violation, Plaintiffs must
show that Defendants' statements deprived them of their liberty
interests in conducting a business.
See County of Sacramento v.
Lewis, 523 U.S. 833, 848 (1998).
However, the conduct by a state
conscience shocking, in a constitutional sense,” to amount to a
Collins v. City of Harker Heights, 503
U.S. 115, 128, (1992).
statements to the press were activities that were not inherently
prosecutorial in nature. Plaintiffs allege that both Green and ADA
Guido made various false statements to the news media about the
investigation and dismissal of the case against the Galliottis.
Statements to the press are not protected by absolute immunity,
but by qualified, good-faith immunity. See, e.g., Buckley v.
Fitzsimmons, 509 U.S. 259, 277-78 (1993); Powers v. Coe, 728 F.2d
97, 103 (2nd Cir. 1984); Jovanovic v. City of New York, 2006 WL
2411541, at *16 (S.D.N.Y. 2006).
Plaintiffs’ complaint cites several alleged false statements
made to the press by ADA Guido and Green but does not specify
Plaintiffs seem to base these allegations on a comment Green made
to the press following the Plaintiffs’ indictment, at which time
he stated “Had this not been a sting and had this been a car that
was returned to an unsuspecting victim, not only was the insurance
company bilked, but there was a serious safety issue.”
Amended Complaint ¶ 56.
Plaintiffs also seem to base their
allegations on a comment ADA Guido made to the press after the
dismissal of the case against the Galliottis, where she stated
“[W]e did the investigation.
We had reliable information.
still stand by everything we did.”
conscience on their face.
Nor does Plaintiffs’ complaint present
any factual basis that these statements were knowingly false, that
their substantive due process, or other protected rights, were
violated by such statements.
Plaintiffs may not simply cite allegations found in their
complaint as if they were established facts to support their
See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Plaintiffs must show specific facts showing there is a genuine
issue of fact warranting a trial, which they have failed to do,
thus summary judgment is granted dismissing their false statements
Plaintiffs assert two similar conspiracy claims under § 1983,
a conspiracy to violate civil rights and a conspiracy to obstruct
justice with the intent to deny Plaintiffs equal protection of the
I construe both claims to be brought under 42 U.S.C. § 1985.
See Webb v. Goord, 340 F.3d 105 (2d Cir. 2003) (“The plaintiffs'
claim under 42 U.S.C. § 1983, which is styled “Conspiracy to
Violate Civil Rights,” should actually be stated as a claim under
Section 1985, which applies specifically to conspiracies”), cert.
denied, 540 U.S. 1110, (2004).
“In order to maintain an action under § 1985, [plaintiffs]
must provide some factual basis supporting a meeting of the minds,
such that defendants entered into an agreement, express or tacit,
to achieve the unlawful end.”
Webb, 340 F.3d 105, 110 (2d Cir.
A purely conclusory allegation of a meeting of the minds
is not enough. See Webb, 340 F.3d at 110 (“The plaintiffs have not
alleged, except in the most conclusory fashion, that any such
meeting of the minds occurred among any or all of the defendants.
Their conspiracy allegation must therefore fail”).
In the instant case, Plaintiffs fail to offer anything more
than conclusory allegations of such a meeting of the minds.
establish that they suffered a deprivation of their constitutional
rights, they cannot, as a matter of law, state a claim for
conspiracy to violate their constitutional rights under § 1985.
See Mody v. City of Hoboken, 959 F.2d 461, 466 (3rd Cir. 1992)
(“section 1985(3) requires that alleged conspiracy result in
injury or loss of federal right”)(citing Griffin v. Breckenridge
403 U.S. 88, 103 (1971)).
Plaintiffs claims against the County of Monroe
Plaintiffs allege that the County of Monroe approved of the
District Attorney’s office’s actions, had a policy of allowing
employees to make false statements, and created a policy in which
Assistant District Attorneys withheld evidence.
A county may be
held liable for a subordinate’s actions if “the action that is
alleged to be unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision officially adopted
and promulgated by that body’s offices.”
Monell v. Department of
Therefore, Defendants’ acts could not give rise to any
derivative liability of the County, as Plaintiffs have failed to
Plaintiffs’ rights under either 42 U.S.C. § 1983 or § 1988.
Moreover, Plaintiffs have failed to submit any evidence in support
of their claim that Monroe County adopted a policy or custom that
led to any violation of their constitutional rights to support
their claim under Monell.
For the reasons set forth above, summary judgment is granted
in favor of the Defendants and Plaintiffs’ complaint is dismissed
in its entirety with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Rochester, New York
July 19, 2011
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?