Oliva et al v. Town of Greece et al

Filing 10

ORDER granting 4 Motion to Dismiss without prejudice. Clerk to close case. Signed by Hon. Michael A. Telesca on January 26, 2012. (MES)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
NICHOLAS OLIVA and CYNTHIA OLIVA
Plaintiff,

11-CV-06189

v.
DECISION AND ORDER
THE TOWN OF GREECE, TOWN OF GREECE
POLICE DEPT., MERRITT RAHN,
JOHN AUBERGER, and BRIAN BALL
Defendant.
________________________________________
INTRODUCTION
Plaintiffs, Nicholas and Cynthia Oliva (“Plaintiffs”), bring
this action pursuant to 42 U.S.C. § 1983, alleging that the
Defendants,

the

Town

of

Greece,

the

Town

of

Greece

Police

Department, and Merritt Rahn, John Auberger and Brian Ball, in
their individual capacities (collectively, “Defendants”), violated
their due process right to access to the courts to pursue claims
relating to a fatal motor vehicle accident in which Plaintiffs’
daughter, Stephanie Oliva, was killed.
dismiss Plaintiffs’ complaint.

Defendants now move to

For the reasons set forth herein,

this Court grants Defendants’ motion to dismiss.

Plaintiffs’

complaint is hereby dismissed without prejudice.
BACKGROUND
The following facts are taken from the complaint. (Docket No.
1.) On November 4, 2005, Plaintiffs’ daughter, Stephanie Oliva was
killed after being partially ejected from a vehicle operated by

Page -1-

Chad Kenyon, which collided with a vehicle operated by Anthony
DeCarlis in the Town of Greece. An open bottle of alcohol was found
in

the

vehicle

in

which

Stephanie

was

a

passenger.

An

EMT

responding to the scene of the accident informed a responding Town
of Greece police officer, Kevin O’Keefe, that Kenyon’s breath
smelled of alcohol and that Kenyon admitted to drinking over ten
beers.

Plaintiffs also allege that Officer O’Keefe noticed that

Kenyon had watery, bloodshot eyes and slurred speech.

However, a

blood test taken using a DWI kit by O’Keefe was allegedly never
verified by the police department with the sample taken at Strong
Memorial Hospital after the accident, which was negative for
alcohol, but positive for THC.
A bag of marijuana was found on the person of the other
driver, DeCarlis, while he was receiving treatment at the hospital.
The

suspected

marijuana

was

initially

department, but later destroyed.

secured

by

the

police

Kenyon was initially arrested by

O’Keefe for driving while intoxicated, but charges were allegedly
never

filed.

DeCarlis

was

not

charged

with

a

crime

and

his

possession of marijuana was allegedly not investigated by the
police department.
Plaintiffs allege that the Town of Greece failed to properly
investigate the accident by (1) failing to interview paramedics and
hospital personnel; (2) failing to inspect the impounded vehicles;
(3) failing to take statements from the drivers or other vehicle

Page -2-

occupants; and (4) failing to investigate the possession of alcohol
by the passengers and drivers of the vehicles or their pre-accident
activities.

Further, the Plaintiffs allege that Sergeant Brian

Ball, a certified accident reconstructionist who conducted an
investigation of the accident (1) failed to take appropriate
measurements and photographs of the scene; (2) made intentionally
false statements regarding contact with the Monroe County District
Attorney’s Office with respect to the accident resulting in the
premature closing of the investigation; (3) falsely publicly stated
that the accident did not involve drugs or alcohol; (4) failed to
properly take the toxicology report from the medical examiner into
account

in

his

investigation;

and

(5)falsely

informed

the

Plaintiffs that there was no evidence of drug or alcohol use.

Ball

allegedly made statements regarding the lack of evidence of alcohol
or drug use without waiting for the results of the toxicology
report - which was ultimately destroyed by the Town of Greece.
Ball later charged Kenyon with the “failure to yield the right
of way” and “driving out of class,” but the charges were later
dismissed. Plaintiffs allege that Ball “appeared in Greece Town
Court unprepared, and knowingly failed to secure necessary evidence
which would have supported the pending charges.”
A later collision reconstruction report completed in 2009
stated that the inadequate or inaccurate information collected by
Ball

during

the

investigation

precluded

Page -3-

a

full

accident

reconstruction.

However, the report also concluded that based on

the available evidence of Kenyon’s intoxication, he could have been
charged with vehicular manslaughter or involuntary manslaughter.
Plaintiffs later requested copies of the police report, but the
copies provided had been intentionally altered by removing a lab
report and redacting the information regarding the marijuana found
on DeCarlis’s person.
Then, in July 2009, the Town of Greece conducted an internal
study of the Town of Greece Police Department, which resulted in
the public release of a report by the Director of Public Safety,
Joseph

F.

Loszynski

in

July

2010

(the

“Loszynski

Report”).

Plaintiffs allege that the report states that the Town of Greece
Police Department (1) failed to properly investigate a fatal motor
vehicle

accident,

resulting

in

preventing

a

manslaughter

prosecution of the operator, and (2) intentionally misrepresented
the facts of a particular incident by submitting false affidavits
in connection with a civil lawsuit.

Plaintiffs allege that these

two findings relate to the accident in which Stephanie Oliva was
killed and a later civil lawsuit brought by her father. Plaintiffs
do not state the nature of this lawsuit or the outcome.
Plaintiffs also allege that the report concludes “neither the
patrol nor criminal division had a clear understanding as to what
cases required investigation and control by the criminal division”
and that the police department “consistently failed to conduct in-

Page -4-

depth probes and investigations of allegations that warranted an
unbiased and independent assessment of the facts.”

Further, the

report “concluded that ‘the so-called internal affairs function of
[the Town of Greece Police Department] was so dysfunctional,
inadequate and corrupted...that no reasonable person could even
expect

that

[it]

has

a

process

that

deterred

misconduct

or

investigated misconduct without prejudice and put the interest of
the public

first.”

Based

on

these factual

allegations,

the

Plaintiffs allege that the Town of Greece had a policy or custom
which encouraged police officers to inadequately conduct criminal
investigations, which led to the alleged constitutional violation.
Further, Plaintiffs allege that “due to either conspiracy...or
fraud” they were “precluded from the discovery of the harm,” as
“Defendants took tangible steps...to conceal the nature of their
activities related to the investigation.” They state that the
public release of the Loszynski Report in July 2010 was the first
time they became aware of the inadequacies of the investigation,
the failure to disclose information relating to drug and alcohol
use, and other allegedly fraudulent activity relating to the
investigation.
DISCUSSION
Rule 8(a) of the Federal Rules of Civil Procedure states that
a pleading need only contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”

Page -5-

The

pleading must be sufficient to “give the defendant fair notice of
what the plaintiff’s claim is and the ground upon which it rests.”
Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002). In deciding
a motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure, a court must “accept...all factual allegations in
the

complaint

and

draw...all

reasonable

inferences

in

the

plaintiff’s favor.” See Ruotolo v. City of New York, 514 F.3d 184,
188 (2d Cir.2008) (internal quotation marks omitted). In order to
withstand dismissal, the complaint must plead “enough facts to
state a claim to relief that is plausible on its face.” See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007).
“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.” See
id. at 1965 (internal quotation marks omitted). Thus, “at a bare
minimum,

the

operative

standard

requires

the

‘plaintiff

[to]

provide the grounds upon which his claim rests through factual
allegations

sufficient

to

raise

a

right

to

relief

above

the

speculative level.’” See Goldstein v. Pataki, 516 F.3d 50, 56-57
(2d Cir.2008) (quoting Twombly, 127 S.Ct. at 1974).
To state a claim for a denial of access to the courts based on
an underlying claim that, due to official state action, cannot now

Page -6-

be tried or cannot be tried to an adequate conclusion (such as an
adequate

settlement

or

reward

of

damages),

a

plaintiff

must

identify the underlying cause of action, as well as the remedy
which is now otherwise unavailable due to the alleged official
actions which hindered the litigation. See Christopher v. Harbury,
536 U.S. 403 (2002).

Further, “the complaint should state the

underlying claim in accordance with [Rule 8] just as if it were
being independently pursued, and a like plain statement should
describe any remedy available under the access claim and presently
unique to it.” Id. at 417.
Here, Plaintiffs allege that they “have been deprived of their
full ability to prove the extent of their damages including their
entitlement to punitive damages in a civil action against the
drivers of the vehicles.”

Plaintiff, however, does not identify

any cause of action she seeks to pursue against the drivers or that
she previously sought to an inadequate conclusion.

The Court is

left to guess, as the Defendants have, what cause of action
underlies the instant access to the courts claim. The complaint,
therefore, does not satisfy the notice pleading standard which
requires that the plaintiff give the defendant fair notice of the
nature of her claim. Swierkiewicz, 534 U.S. at 513-515.

In the

absence of such allegations, the Defendants surmised that the
plaintiffs sought to bring a wrongful death lawsuit, and they moved
to dismiss the complaint based on the lack of standing.

Page -7-

Def. Mem.

of Law at 7.

In response, apparently conceding that they lacked

standing to bring a wrongful death action, the Plaintiffs filed an
affirmation stating that the Defendants wrongfully assumed that the
underlying cause of action was for wrongful death.

Rather, they

sought to bring a survivors’ action for the conscious pain and
suffering of Stephanie Oliva.

Pl. Affirmation in Response to Def.

Motion to Dismiss at ¶15. However, such an allegation is not
included in the complaint, nor are allegations relating to the
conscious pain and suffering of Stephanie Oliva.

This exchange

between the parties underscores the fact that the Plaintiffs have
failed to give the Defendants fair notice of the nature of their
access claim.

Plaintiffs have also not sought leave to amend the

complaint to include such allegations.

Accordingly, Plaintiffs’

Complaint is dismissed without prejudice.

ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
January 26, 2012

Page -8-